Despite the efforts of partisans on both sides of health care reform, it appears that all nine members of the Supreme Court will rule on the cases testing the constitutionality of the Affordable Care Act.
Dueling campaigns have been underway for months for justices Elena Kagan and Clarence Thomas to recuse because of perceived conflicts of interest: Kagan because of her role as solicitor general during and after passage of the law in 2010, and Thomas because of his wife Virginia’s involvement with conservative groups opposing the law.
Monday’s orders granting review in the health care cases would have been the customary occasion for justices to signal their intentions to step aside by stating that they “took no part” in the decision. But there was no such indication from any of the nine.
It is conceivable but unlikely that either Kagan or Thomas could still bow out at some later point, however, and activists Monday said they would continue to exert pressure on the justices, possibly including formal requests to recuse. Members of Congress who have urged Thomas and Kagan to step aside may also join the fray.
“I don’t think it’s over yet,” said Carrie Severino of the conservative Judicial Confirmation Network, which has been critical of Kagan’s participation in the case.
Elena Kagan Must Be Recused In ObamaCare Case
Supreme Court: Should a justice who participated in ObamaCare’s creation recuse herself from the court’s review of that law? Of course. But then a nominee who lies in confirmation hearings shouldn’t be on the court anyway.
If Justice Elena Kagan were a person of character, she would sit out the Supreme Court’s hearing of the challenge to the Patient Protection and Affordable Care Act.
But during her confirmation hearings in June of last year, she indicated she would not. And since this Monday, when the court announced it would take the case, she has done nothing to suggest she will recuse herself after all. Nor has the court made any statement about her recusal, a convention it usually follows when a justice takes himself or herself off a case.
Here are the facts on Kagan: She was the administration’s solicitor general when ObamaCare became law last year. She has acknowledged that she was at a meeting in which state litigation against ObamaCare was discussed, though she said she was not involved in any legal responses concerning the states’ litigation.
We also know that Kagan enthusiastically supported ObamaCare. This is made clear in emails released last week by the Justice Department.
“I hear they have the votes, Larry!! Simply amazing,” Kagan wrote on the day ObamaCare passed the House in an email to Laurence Tribe, the Harvard law professor who was working at that time in the Obama Justice Department.
Re: JCN Memo on Kagan Recusal – By Ed Whelan
1. The documentary record clearly establishes that Elena Kagan, as Solicitor General, was personally involved, even if only to a limited degree (though without a complete record, it’s difficult to know how limited), in advising how to defend against challenges to Obamacare. Among other things:
– Kagan personally assigned her deputy Neal Katyal to be part of “a group to get thinking about how to defend against inevitable challenges to the health care proposals that are pending.” (The quote is from an e-mail query from the Associate Attorney General’s office.) [See page 1 of documents linked above.] Katyal then informed the Associate Attorney General’s office that “Elena would definitely like OSG [the Office of the Solicitor General] to be involved in this set of issues,” that he will handle the matter, and that “we will bring Elena in as needed.” [See page 20.]
– Katyal copied Kagan on his advice to Associate Attorney General Thomas Perrelli that DOJ “start assembling a response” to a draft complaint “so that we have it ready to go.” In context, it’s clear that he’s inviting her to state any disagreement that she might have. Her apparent non-response would therefore be taken by Katyal and Perrelli as expressing her agreement. [See page 3.]
Read the full story at Re: JCN Memo on Kagan Recusal – By Ed Whelan – Bench Memos – National Review Online.
Here is the United States Code for our readers Reference
TITLE 28--JUDICIARY AND JUDICIAL PROCEDURE PART I--ORGANIZATION OF COURTS CHAPTER 21--GENERAL PROVISIONS APPLICABLE TO COURTS AND JUDGES Sec. 455. Disqualification of justice, judge, or magistrate judge (a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. (b) He shall also disqualify himself in the following circumstances: (1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding; (2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it; (3) Where he 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 in controversy; (4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;
Read the Rest United States Code: