We have previously discussed the question of recusals involving Justice Clarence Thomas and his violation of reporting rules on the Court. Now, a similar debate is likely to start over the participation of Justice Elena Kagan in any review of Patient Protection and Affordable Care Act. The loss of Kagan could be determinative in a close vote on the Court, but that is always the danger in selecting your Solicitor General as a nominee. While Kagan used the announcement of cases on Monday to recuse herself for other cases, she notably did not include the Florida case.
Pursuant to 28 USC 455, a Supreme Court justice must recuse herself from “any proceeding in which [her] impartiality might reasonably be questioned.” Recusal is also required where a justice has “expressed an opinion concerning the merits of the particular case in controversy” while he “served in governmental employment.”
It would expected that the Administration’s top litigator in the Supreme Court would have been consulted on the Act and its constitutionality. While the Solicitor General only argues in the final stage of litigation before the Supreme Court, it is common for her office to be consulted with as part of a comprehensive strategy in a high-profile case.
However, little is known about Kagan’s actual involvement and she has denied expressing an opinion on the constitutionality of the law. During her confirmation, she was expressly asked about her involvement in the legislation:
“Have you ever been asked about your opinion regarding the underlying legal or constitutional issues related to any proposed health care legislation, including but not limited to Pub. L. No. 111-148, or the underlying legal or constitutional issues related to potential litigation resulting from such legislation?”
“Have you ever offered any views or comments regarding the underlying legal or constitutional issues related to any proposed health care legislation, including but not limited to Pub. L. No. 111-148, or the underlying legal or constitutional issues related to potential litigation resulting from such legislation?”
She answered no to both questions. I was frankly surprised that she never discussed the “underlying legal or constitutional issues” but she has expressly denied such involvement.
E-mails have emerged between Kagan and Harvard Professor Laurence Tribe where Kagan discusses the legislation in passing and expressly support. In discovery obtaining by Judicial Watch, then-Solicitor General Elena Kagan writes to Tribe, who was serving in the Justice Department, “I hear they have the votes, Larry!! Simply amazing.” Tribe started the email exchange with a message with a subject line of “fingers and toes crossed today!” However, the primary reason for the message appears to be a planned dinner. He wrote: “So health care is basically done! emarkable. And with the Stupak group accepting the magic of what amounts to a signing statement on steroids!”
Of greater concern, in my view, is a separate email exchange on March 21, 2010 (the day PPACA was passing the House) with her top deputy Neal Katyal. Associate Attorney General Tom Perrelli had send a message to a group of DOJ lawyers, including Katyal, notifying them that there was going to be a meeting the next day to plan for the litigation expected to challenge PPACA. Kagan was included in the mailing, which would seem to confirm her offices involvement in the litigation planning. As head of that office, it raises a serious appearance problem and may reflect additional conversations that could have occurred between her and Katyal or other lawyers in effort. This was already one of the top priorities of the Administration and one would expect a comprehensive team at Justice Department that would include the Solicitor General’s office.
However, the Administration appears to have anticipated the issue and, according to Attorney General Eric Holder, carefully separated Kagan from any discussions of the health care law:
“I can tell you that certainly, one of things that we did while she was solicitor general was physically-physically–literally move her out of the room whenever a conversation came up about the health care reform legislation . . . I can remember specific instances in my conference room when we were going to discuss that topic. We asked Justice Kagan to leave and she did.”
That effort may be successful, though it also increases the appearance of selecting someone in part to help guarantee a vote on the critical legislative measure for the Administration. Few would doubt that Kagan would vote for the legislation and the effort leaves the appearance of a pocket vote for the President. For full disclosure, I questioned Kagan’s selection given the many more distinguished judges and academics. Kagan had little writing and little litigation distinguishing her. What she did have was strong connections in the Administration and a reliable vote potential.
Kagan has previously recused herself from cases, but nothing as important and with such a potentially determinative impact as the health care litigation. In October 2010, Kagan recused herself from half of the cases pending before the Court. Given the obvious effort by everyone to separate Kagan from these discussions, she may have avoided a conflict, but the involvement of her office still presents a serious appearance question. The emails with Tribe also suggest that she may have been a bit lax at times in dealing with the legislation.
Once again, this controversy highlights the need for enforceable ethical standards for the Court and greater clarity on conditions for mandatory recusal.