Should Kagan Recuse Herself From The Health Care Case?

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.

Source: IBTimes

32 thoughts on “Should Kagan Recuse Herself From The Health Care Case?”

  1. Wh have two judges in the pockets of Big Pharma, Pfizer, et al. They party with these judges and toast them in admiration.
    These corporate parties have a FINANCIAL interest in the case which would seem to be a bigger conflict of interest.

  2. She should recuse herself.
    Her reply [“I hear they have the votes, Larry!! Simply amazing.”], using two exclamation points, creates the presumption that she is invested in the issue, either for or against.

    That Scalia shoots with Cheney shows he lives in a world no longer his own.

  3. Early this year, Bob Edgar, President and CEO of Common Cause wrote a letter to Eric Holder requesting that the Justice Department investigate whether Justices Scalia and Thomas should have recused themselves from the Citizens United case under 28 U.S.C. § 455.

    Dear Attorney General Holder,

    The Supreme Court’s 5-4 decision in Citizens United vs. Federal Election Commission, 130 S. Ct. 876 (2010), has had a dramatic impact, overturning prior Court precedent, ending restrictions on corporate and union political spending that had been in place since 1947, and fueling a surge in secret and independent spending in the 2010 elections. Outside groups spent more than $296 million on the 2010 Congressional midterms – a 330 percent increase over 2006 – with more than $135 million of that coming from undisclosed donors¸ according to the nonpartisan Center for Responsive Politics.

    Since that decision, information has come to light that raises serious questions about the impartiality of Justices Thomas and Scalia in the Citizens United case. It appears both justices have participated in political strategy sessions, perhaps while the case was pending, with corporate leaders whose political aims were advanced by the decision. With respect to Justice Thomas, there may also be an undisclosed financial conflict of interest due to his wife’s role as CEO of Liberty Central, a 501(c)(4) organization that stood to benefit from the decision and played an active role in the 2010 elections.

    Until these questions are resolved, public debate over allegations of bias and conflicts of interest will serve to undermine the legitimacy of the Citizens United decision and erode public confidence in the integrity of our nation’s highest court. As Attorney General, you are ideally situated to address this matter, both in the interest of justice and in the interest of your client, the Federal Election Commission. The Commission was the losing party in Citizens United, but may now have legitimate grounds to seek reconsideration.

    Therefore, Common Cause hereby formally requests that the Justice Department promptly investigate whether Justices Thomas and Scalia should have recused themselves from the Citizens United case under 28 U.S.C. § 455. If the Department finds sufficient grounds for disqualification of either Justice, we request that the Solicitor General file a Rule 60(b) motion with the full Supreme Court seeking to vacate the judgment.

  4. Swarthmore mom,

    Thanks for that link!

    Scalia and Thomas were feted at a fundraiser thrown for the Federalist Society. Alito was in the audience. The FS has espoused many of the arguments against the PPACA. The law firm which threw the fundraiser has been retained to by opponents of the Act. The lawyer who will probably argue the case sat between Scalia and Thomas.

  5. “Should Kagan Recuse Herself From The Health Care Case?”

    Of course not. Why isn’t the same question being asked of Clarence Thomas? He certainly won’t, no matter how extensive his involvement with the opponents of PPACA is.

  6. When Thomas and Scalia recuse themselves, then Kagan should recuse herself. It is preposterous to hold Kagan to a higher standard than the two Justices who make a habit out of dining with the law firm that is arguing this exact case before them.

  7. Swarthmore mom,

    Thanks for that link!

    From the article you linked to:

    “The day the Supreme Court gathered behind closed doors to consider the politically divisive question of whether it would hear a challenge to President Obama’s healthcare law, two of its justices, Antonin Scalia and Clarence Thomas, were feted at a dinner sponsored by the law firm that will argue the case before the high court.”

    I wonder if Scalia and Thomas plan to recuse themselves from this case. Talk about a lack of judicial ethics.

  8. JG,

    Good answer….But what has ever stopped honor from entering into politics….I think the answer is in Marbury …..NOTHING…. That was the biggest power grab of any case directly benefiting the Sct….

  9. Maybe it will be a “twofer”

    “This is a good time to recall that seventy-four members of Congress have signed a letter asking Justice Clarence Thomas to recuse himself from any ruling on the Affordable Care Act because of his wife’s work as a conservative activist and lobbyist, where she specifically agitated for the repeal of “Obamacare.” The recusal effort was spearheaded by Representative Anthony Weiner, and his resignation in June slowed the momentum around this issue on Capitol Hill—but there’s still ample evidence for concern”

  10. Well, of course she should! If she fails to do so, she AND the Act will be tried by the GOP in the Court of Public Opinion, we will never hear the end of it. Moreover, it will probably just intensify the disdain of Scalia, Alito et al., and their law clerks who will be charged to going to the ends of the earth to really kick the law in the teeth. PPACA won’t get a fair shake by this court anyway, but maybe Kagan should condition her recusal on Thomas doing likewise. If he won’t go, neither should she.

  11. Short answer: No, not unless Scalia and Thomas also recuse themselves. Do not give away the store.

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