I Appreciate the Attention, But Let’s Talk About the Law

Media Matters was kind enough to read my white paper on Kagan’s recusal, but apparently missed the legal analysis. Their dismissive rebuttal of my argument was short and sweet:

The charge is baseless. Kagan has said that she had not been involved in any substantive discussions of the health care reform law, the constitutionality of the law, or litigation involving the law.

But involvement in “substantive discussions” is not, in fact, the relevant legal standard.

Actually, precedent in three federal circuits suggests that Kagan ought to recuse herself merely by virtue of being head of the Solicitor General’s office while her office worked on the case. Under that test, even if she never knew the case was being addressed, she’d still need to recuse as a justice. 

But my conclusions weren’t based on the assumption that Kagan would follow the courts who err on the side of recusal. The other circuits say that being titular head of an office isn’t enough and instead require personal participation to trigger recusal. As I detail in my analysis, Kagan had such personal participation. She brought the case into her office well before it would arrive there in the normal course, hand-picked her political deputy to be point person, and was kept in the loop on internal strategy discussions. She has testified to the Senate Judiciary Committee that she never was asked or gave her opinion about the merits of the case — and that may well be, but it is irrelevant. If she was receiving confidential, privileged information about the case, she was being treated as counsel by the others involved.

Media Matters seizes on my measured conclusions in April posts I wrote on this topic in an attempt to undercut the argument for Kagan’s recusal.  At the time — based largely on the same information we have today — I thought the question of Kagan’s recusal was still too close to call. And here a mea culpa is perhaps in order. 

When originally looking at this issue I was perhaps relying too much on Kagan’s own gloss on recusal law — suggesting that she only need recuse if she played a “substantial role” in the litigation. I should not have taken this as the last word. Over the past month, I have done my own analysis of the state of the law and concluded that Kagan’s position reflects more wishful thinking than legal rigor. Her own description of her recusal duties suggests as much: she indicated in testimony to the Senate Judiciary Committee that her recusal from the Obamacare cases was not a foregone conclusion, and that she would “consider recusal on a case-by-case basis, carefully considering any arguments made for recusal and consulting with my colleagues and, if appropriate, with experts on judicial ethics.” 

So Kagan herself would disagree with Media Matter’s flip one-sentence determination that there are no grounds for recusal. 

And this would not be the first time her early estimates of recusal obligations would fall short. At her hearings, Kagan stated that she would recuse from cases in which her name was on a brief and in which she had “officially formally approved something.” But, as I noted, that standard does not reflect the law as to when she must recuse. And, even as the nomination process progressed, Kagan’s own description of when she must recuse herself from cases expanded from her estimated ten cases in which her name was on the brief to those in which she had made an “official” or “formal” decision, to those in which she had reviewed draft pleadings or “participated in discussions to formulate the government’s litigating position.” 

Her “participated in discussions” phrasing is telling, and I think carefully sidesteps the question of her involvement in the Obamacare cases. From what we know about the record, she did not “participate” in discussions, on e-mail at least, by giving her own opinion. But she was privy to the privileged information in those discussions. I believe that privileged role — giving her an inside view that she couldn’t even share with her fellow justices — merits recusal under current law. 

Kagan’s description of her activity as solicitor general also creates a distinction between formal and informal involvement that has no basis in the case law. She is careful to describe all pre-appellate involvement of her office as “informal” and demurs on questions about whether she consulted on particular cases by stating that the office does not usually keep records of such discussions. None of this changes the fact that those type of discussions still trigger recusal under federal law.

I don’t take a call for a Supreme Court Justice’s recusal lightly, nor have I ever been inclined to believe Kagan committed perjury. In April my nascent understanding of the case law on recusal had not convinced me. Armed with a more complete understanding of the law, I now believe she has that obligation. I challenge Media Matters to take up that claim on its own legal merits.

Carrie Severino — Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

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