Judicial Watch, the conservative legal watchdog group, filed a Freedom of Information Act request and came up with three e-mails “that provide additional information about Supreme Court Justice Elena Kagan and the Affordable Care Act (also known as Obamacare) while she served as solicitor general.” The documents are summarized on Judicial Watch’s Web site:
•An October 13, 2009, exchange between Kagan and former Deputy Solicitor General (and current Acting Solicitor General) Neal Katyal. Katyal informs Kagan, “We just got Snowe on health care,” referring to Senator Olympia Snowe (R-ME). . .
•A March 21, 2010, email from Kagan to then-Senior Counselor for Access to Justice Laurence Tribe: “I hear they have the votes Larry!! Simply amazing. . .” Tribe responds, “So healthcare is basically done! Remarkable.”
•A March 16, 2010, email from Kagan to David Barron, then-acting head of the Justice Department’s Office of Legal Counsel, asked if he had seen an article by Michael McConnell published in the Wall Street Journal that discussed a strategy by Democrats to “‘deem’ ObamaCare into Law without voting.” “Did you seee [sic] Michael McConnell’s piece in the wsj?” Kagan writes in an email with the subject line “Health care q.” “YES, HE IS GETTING THIS GOING,” replied Barron.
Although these documents suggest that Kagan was more involved in the Obamacare debate than she previously let on, it’s not yet clear that they should require recusal. A former Bush Justice Department attorney observes via an e-mail to me: “I don’t see her expressing her opinion on constitutionality in any of the emails.” In other words, these do not show that she was acting as a legal advocate or adviser on a statute that now comes before the Supreme Court.
However, Ed Whelan of the Ethic and Public Policy Center, gets into the meat of the correspondence and argues that the e-mails do raise significant questions. He writes:
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.” . . . 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.” . . .
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.
Whelan also find it disingenuous that in “an e-mail dated June 15, 2010 — shortly after her nomination to the Court — Katyal informs Kagan that he told Attorney General Holder that ‘you have been walled off from Day One’ from the litigation over Obamacare.”
Well, once again we don’t have a smoking gun that Kagan actually rendered advice or weighed in on the deliberations. In my view, I don’t think as Whelan does, that the threshold has been met in the statute requiring recusal when a judge “has served in government employment and in such capacity participated as counsel [or] adviser . . . concerning the proceeding.” I don’t see evidence in these e-mails that she provided counsel or rendered advice
However, there is a different recusal provision that I believe is at issue. 28 U.S.C. 455 (a) provides: “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” The e-mails show that Kagan was cheering robustly for the passage of the bill and considered this an historic measure. She plainly thinks the statute is a swell idea. Shouldn’t we now reasonably question, after reading about her obvious delight in progress of the legislation, that she can put all that aside and render impartial justice? I certainly think so.
But of course it’s not up to the media or the public or Congress to throw her off the case. It is her conscience and legal ethics that must guide her decision. The opportunity to ensure that she would do so was in the confirmation hearing. Did the Senate fall down on the job? Absolutely. She was confirmed without the benefit of these documents and without questioning her on the ethical issue raised thereby.
Kagan has apparently decided to plunge ahead and rule on the case. But you have to wonder if a justice who hopes to be on the Supreme Court for years to come and who craves the respect of the legal profession should put in jeopardy her reputation and integrity, no matter how important a single case may be.
If the Supreme Court upholds the constitutionality of Obamacare with hers as the decisive vote, the opinion will be forever tainted. That is precisely why recusal is an essential part of the judicial system: We want the entire country to have confidence that the decision was rendered by those who have no stake (financial, political, ideological) in the outcome. I don’t see how that is possible in Kagan’s case.