Yesterday, the Supreme Court granted cert in the so-called “Obamacare” case. Today, the question is: Should any justice recuse herself in that case? Two legal watchdog groups have raised serious questions about Supreme Court Justice Elena Kagan’s ability to impartially decide the constitutionality of Obamacare.
On November 9, the Judicial Crisis Network (“JCN”) released a “white paper” that analyzed a series of Department of Justice (“DOJ”) emails obtained through the Freedom of Information Act (“FOIA”), along with the relevant statute and case law on recusal for former government employees.
The e-mails in question, though an incomplete record, reveal then Solicitor General Kagan’s involvement in Obamacare’s legal defense at crucial stages of the process. This involvement spanned months, from her initial assignment of political appointee Neal Katyal as “point man,” to her demand for “coordination” after it became obvious recusal questions would be forthcoming. At the very least, as National Review’s Ed Whelan points out, Mr. Katyal’s assertion that Kagan was “walled off from Day One” is clearly erroneous and demonstrates further scrutiny is needed on this issue.
Carrie Severino, the author of JCN’s white paper, explains some of the more troubling details contained in the emails along with the relevant law:
During her confirmation hearings, Kagan stated that she was present at “at least one” meeting in which the challenges to PPACA were discussed. But JCN has obtained documents indicating that her involvement was much more substantial than merely attending a single meeting.
We have received multiple documents concerning Kagan’s involvement in the PPACA litigation containing redacted material that is exempted from production under FOIA’s “b(5)” exemption. . . The implications of the numerous b(5) deliberative process exemptions are serious because they show that Kagan, unsurprisingly, received information about the PPACA litigation involving strategy . . .
Section 455(b)(3) of Title 28 addresses the specific case at hand: the recusal obligations of former government employees. It requires recusal where the judge “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.” 28 U.S.C. §455(b)(3) . . .
The statute nowhere defines either “counsel” or “participated,” but case law does give guidance, and that guidance indicates that any personal (as opposed to pro forma) participation in a case is sufficient to trigger recusal. Thus . . . judges must recuse themselves if they have “previously taken a part, albeit small, in the investigation, preparation, or prosecution of a case.” United States v. Gipson, 835 F.2d 1323, 1326 (10th Cir. 1988) (emphasis added).
Severino then discusses another section of the statute that also seemingly implicates Kagan:
Subsection (a) of Title 28 directs that “[a]ny justice, judge or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). This is often referred to as the “catch-all” provision, and “covers situations not addressed by § 455(b) that nonetheless might be appropriate for recusal.” Baker & Hostetler LLP v. U.S. Dept. of Commerce, 471 F.3d 1355, 1357 (D.C. Cir. 2006).
Kagan’s defenders in the blogosphere have latched on to her claim that she did not have any “substantive discussions” regarding Obamacare’s legal defense. But as Ms. Severino pointed out in a follow up post neither “substantive discussions” nor Kagan’s alternate “substantial role” formulation articulate the proper legal standards of “personal participation” or “reasonable appearance of partiality” discussed above.
To ferret out the extent of then Solicitor General Kagan’s involvement in Obamacare’s legal defense, a second legal watchdog, the Judicial Action Group, released a letter dated November 14, that called on the Chairman of the House Judiciary Committee (“Committee”) to hold appropriate hearings. In addition, the letter noted previous unsuccessful Committee attempts, to question Mr. Katyal and DOJ Public Affairs Officer Tracy Schmaler about Ms. Kagan’s role. Unfortunately, Attorney General Eric Holder has thwarted attempts to question these witnesses and has otherwise sent dilatory and inadequate responses to the Committee. The letter details how his actions have hindered the Committee and prevented it from performing its proper oversight role on this important issue.