Kagan should stay out of Obamacare fight

Legal hair-splitting by Washing-ton lawyers is a daily occurrence in the nation’s capital, but not even the most accomplished barrister can twist federal law into something it’s clearly not. Exhibit A here is the law specifying when a federal judge should recuse himself or herself from hearing a case. On the issue of when recusal is appropriate, that law is about as clear as the English language can make it.

As Senate Minority Leader Mitch McConnell and three of his Senate Republican colleagues wrote in a Nov. 18 letter to Attorney General Eric Holder, a justice should withdraw from any case in which he or she “has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case or controversy.” The law further stipulates that recusal is appropriate whenever a justice’s “impartiality might reasonably be questioned.”

As McConnell and his three colleagues — Sens. Jon Kyl of Arizona, Charles Grassley of Iowa and Mike Lee of Utah — point out to Holder, recently released emails suggest that Justice Elena Kagan’s involvement as U.S. solicitor general in the Obama administration “may satisfy both requirements for recusal.” Frankly, we think the GOP senators are understating what those emails reveal about Kagan’s efforts in the campaign for Obamacare, even though she claimed before the Senate Judiciary Committee during her confirmation hearing that her role was not “substantial.”

For example, in January 2010, two months before Kagan became aware of her possible nomination to the Supreme Court by President Barack Obama, Holder’s underlings began preparing their defenses of Obamacare. Kagan was “heavily involved” in that planning, according to an email from Neil Katyal, deputy solicitor general.

In another email, Katyal explained that he had spoken with Kagan earlier in the day about a Justice Department working group on Obamacare defense preparations and said “Elena would definitely like OSG [Office of the Solicitor General] to be involved in this set of issues.” Kagan would be brought into the working group’s deliberations “as needed.” Since the key issue facing the working group was preparing legal defenses that would be presented by the solicitor general, it is inconceivable to think that official would be excluded from such deliberations.

The issue of Kagan’s possible recusal is of critical importance to how the high court is likely to rule on the constitutionality of Obamacare. Court watchers believe there are four solid votes in favor of declaring unconstitutional at least the individual mandate that is the essential foundation of the law, and four solid votes against such a ruling.

Considering the vote-buying in the Senate — remember the “cornhusker kickback” — and the warping of House rules to gain Obamacare’s passage, it would be refreshing to see Kagan respect the law by recusing herself when the measure comes before the nation’s highest court.


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