The Corner

Obamacare & Kagan

Elena Kagan has told senators that she will recuse herself from eleven cases in which she represented the Obama administration as solicitor general. The WSJ raises an important question today about a key one she doesn’t plan to stay away from on on the Court:

Under federal law (28 U.S.C., 455(b)(3)), judges who have served in government must recuse themselves when they have “participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy.”

Though their public chance has passed, Senators can still submit written questions to Ms. Kagan for the record. We hope someone asks her directly whether the legal challenges to ObamaCare ever arose in her presence at Justice, whether she was ever asked her views, and what she said or wrote about the cases.

Ms. Kagan would sit as Mr. Obama’s nominee on the nation’s highest Court on a case of momentous Constitutional importance. If there is any chance that the public will perceive her to have prejudged the case, or rubber-stamped the views of the President who appointed her, she will damage her own credibility as a Justice and that of the entire Court.

UPDATE: From a letter the Judicial Crisis Network has sent to senators this morning:

If she is confirmed as an Associate Justice of the Supreme Court, Solicitor

General Elena Kagan must recuse herself from taking any part in the Court’s

consideration of Florida et al. v. HHS, if and when that case reaches the

Court’s docket, because it is highly likely that Kagan played an official

role in the administration’s response to the lawsuit. Senators should demand

no less.

Kagan herself agreed that cases in which she “gave advice about the

government’s litigating position or the content of a filing” would “warrant

recusal.”  Under 28 U.S.C. § 455(b) the standard is somewhat higher:

justices and judges who served (like Solicitor General Kagan) as Government

lawyers must recuse themselves where, in that capacity, they “participated

as counsel, adviser or material witness concerning the proceeding or

expressed an opinion concerning the merits of the particular case in

controversy.” 28 U.S.C. § 455(b)(3).

During questioning by Senator Coburn, Kagan did answer an ambiguous question

about her role regarding the health care bill.  She was asked, “was there at

any time you were asked in your present position to express an opinion on

the merits of the health care bill?” She replied that there was not.

 Unfortunately, this question was sufficiently vague in its wording that it

is hard to draw any conclusions from here answer.  Was she referring to the

policy merits – which would certainly have been a concern of the

administration during the bill’s drafting and passage?  Was she referring to

the legal defensibility of the bill in general?  Given her calculated, even

Clintonian, use of language elsewhere in her answers, we cannot even

conclude that she was not asked these things about the law after it was no

longer technically a “bill,” but had been signed into law. She was also not

specifically asked about whether she advised the President or other DOJ

lawyers regarding the arguments levied against the law in the Florida

litigation, and this seems a topic that almost certainly would have come up

in her role as Solicitor General.

It is exceedingly likely that, when the States’ challenge to the new health

law was filed in March, 2010, Kagan participated as counsel or advisor to

the Administration on the matter, or at least expressed her opinion on the

case’s merits at that time. This is the case because it is standard DOJ

practice to discuss and exchange opinions about key pending legislation as a

routine part of various daily and weekly senior staff meetings. The notion

that this routine behavior was not in place with regard to the most

significant constitutional challenge to the Administration’s key legislative

accomplishment is difficult,

if not impossible, to credit. To believe otherwise would amount to holding a

view that for months before Justice Stevens announced his retirement, the

Solicitor General knew that it was forthcoming and that she would be the

Administration’s nominee to replace him, and that therefore she should cease

to behave as an active and engaged Solicitor General, and would have had to

inform her numerous DOJ colleagues of this remarkable decision.

Any participation by Kagan in Administration discussions about Florida et

al. v. HHS, in which she ventured an opinion regarding the case’s merits,

clearly would require her disqualification from any consideration of the

case by the Supreme Court. This point should be clarified by Senators before

voting on her nomination.  It is a key aspect of the Senate’s advice and

consent function both to reach appropriate conclusions as to the facts and

to act in a manner that ensures the impartiality (in substance and

appearance) in our system of justice.


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