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.

OpinionUS

Just Posted

San Francisco Giants manager Gabe Kapler, pictured in July at Oracle Park, says team members simultaneously can be “measured and calm” and “looking to push the accelerator.” (Chris Victorio/Special to The Examiner)
How Gabe Kapler sets the tone for Giants’ success with strategy, mindset

‘There’s no doubt in my mind that he’s the hands-down manager of the year’

Artist Agnieszka Pilat, pictured with Spot the Robot Dog from Boston Robotics, has a gallery show opening at Modernism. (Courtesy Agnieszka Pilat)
Screenshots of VCs, Kanye and tech parties by the Bay

In this week’s roundup, Ben Horowitz’s surprising hip-hop knowledge and the chic tech crowd at Shack15

If he secured a full term in the Senate, Newsom would become the most powerful Californian Democrat since Phil Burton at the height of his career, or maybe ever. <ins>(Kevin Hume/The Examiner)</ins>
Firefighters extinguish burning material near Lake Tahoe on Sept. 3 in the wake of the Caldor Fire; environmental scientists say the huge fire is bringing to light deficiencies in forest management. <ins>(Max Whittaker/New York Times)</ins>
Cal Fire, timber industry must face an inconvenient truth

We are logging further into the wildfire and climate crisis

Changing zoning in San Francisco neighborhoods where single family homes prevail is crucial in the effort to achieve equity. (Shutterstock)
To make SF livable, single-family zoning must be changed

Let’s move to create affordable housing for working class families

Most Read