The Republican Lawyer Blog : recusal

Justice Department and Kagan Should Explain Why Kagan Is Not Recusing Herself

Paul Jossey — Thu, 22 Dec 2011 20:13:00 GMT

There are a lot of questions raised by Supreme Court Justice Elena Kagan’s silence on her decision whether to sit for the Obamacare decision. An all-star panel convened this December to discuss the questions presented by having a member of the nation’s highest court have the experience of previously serving as Solicitor General. Recusal is a serious issue that deserves careful evaluation. But we don’t have all the information. There is information that Kagan and the Department of Justice can offer and has not. What are they hiding? There’s reason for concern that they aren’t speaking out.

Obamacare is an explosive case, which involves whether the federal government, under its power to regulate commerce, can force citizens to buy private insurance or face penalties. Judicial Watch hosted a panel which invited Carrie Severino of the Judicial Crisis Network, Ed Whelan of the Ethics and Public Policy Center, Professor Ronald Rotunda of Chapman University and Russell Wheeler of the Brookings Institution.

Ms. Severino outlined her case—which you can find in more detail in her white paper—for Kagan’s recusal. She highlighted three reasons why the former Solicitor General should not hear the Obamacare case. First, Ms. Severino discussed Ms. Kagan’s decision to bring this case into her office at the district court level—an unusual move, but not unheard of. Next was Kagan’s decision to appoint her political deputy, Neal Katyal as the DOJ’s point person for Obamacare’s legal defense. And finally there was the fact that she received confidential information the DOJ later withheld under FOIA’s “b(5)” deliberative process exemption. Ms. Severino forcefully argued all of these factors indicate she should recuse under 28 U.S.C. §455(b)(3), which covers recusal of former government employees.

Professor Rotunda also asserts– as he later wrote in an op-ed—that Kagan should recuse herself. Professor Rotunda discussed Ms. Kagan’s presumptive partiality by recalling her confirmation testimony on the Commerce Clause’s “activity/inactivity” distinction, central to the constitutionality of the individual mandate. Ms. Kagan stated the Court should not strike down laws such as the famous “broccoli” scenario—thereby presaging her stance on Obamacare.

According to Ed Whelan (and explained further here on National Review Online), it was a myth that General Kagan had been “walled off” from Obamacare legal strategy from day one. This erroneous assertion arose from released e-mail correspondence between Katyal and a DOJ public affairs officer. Whelan argued that the e-mail chains would have looked differently had Ms. Kagan not personally participated.

Some, like Justice At Stake, have tried to equate Thomas and Kagan recusal decisions. As Wheeler argues, the media reporting has actually been a “fact free zone” because the legal standards for recusal have been misreported. Each recusal situation should be decided on its own circumstances. Ms. Severino notes that no stories on Justice Thomas actually reference a federal statute. Professor Rotunda explained that federal law actually does demarcate when a spouse’s involvement should trigger recusal, for instance when the spouse is an active attorney on the case before the judge. Rotunda concludes that Thomas’ circumstances do not meet the federal standard.

Although Mr. Wheeler declined to express an opinion specifically on Ms. Kagan’s recusal, all the panelists agreed there are limited steps that can now be taken now in the face of Ms. Kagan’s apparent reticence. Attorney General Holder has unfulfilled the requests from Congress for documents and interviews with some of the prominent actors involved like Katyal. Those seeking to know the full truth are at the mercy of what has proved to be an intransigent Justice and an obstructionist and dilatory agency. Kagan should take steps to at least explain her position, as Justice Scalia did in the energy task force case, instead of continuing silence.

Simply Amazing: Kagan Hasn’t Recused Herself from Obamacare

Paul Jossey — Wed, 23 Nov 2011 14:21:00 GMT

Evidence continues to mount that Supreme Court Justice Elena Kagan is not able to impartially decide the constitutionality of Obamacare when it comes before the Court later this year. As the RNLA pointed out last week, two legal watchdog groups have both recently taken positions advocating Justice Kagan’s recusal.

Those positions have now grown stronger in the wake of a newly released e-mail exchange between then Solicitor General Kagan and law professor Larry Tribe, then also with the Department of Justice. In their discussion, dated March 21, 2010, General Kagan can barely contain her excitement at the prospect that the months-long political fiasco that preceded Obamacare’s passage is finally at an end. In response to Mr. Tribe’s email with the subject line, “fingers and toes crossed today!” Kagan enthusiastically responds, “I hear they have the votes, Larry!! Simply amazing.”

This latest belated disclosure of General Kagan’s understandably partisan posture regarding Obamacare has prompted Senator Jeff Sessions, of the Senate Judiciary Committee, to submit a series of follow-up questions to Attorney General Eric Holder regarding General Kagan and Obamacare. In the November 15 letter, he also criticized the Department of Justice’s apparent stonewalling of legitimate information requests and the lack of satisfactory explanations for contradictory testimony. Senator Sessions described Attorney General Holder’s insolence thusly:

I am deeply disturbed by these developments and believe that the Justice Department should have provided these documents to the Senate Judiciary Committee during Justice Kagan’s confirmation hearing. The Department’s failure to provide this information to Congress and to comply with FOIA requests, as well as your apparent inattention to these matters, is unacceptable.

There needs to be a complete review of Justice Kagan’s impartiality by the proper congressional committees with the Department of Justice’s complete and prompt cooperation. When the Supreme Court granted cert to the Obamacare case last week, Justice Kagan did not announce that she would recuse herself. There seems to be more evidence raising concerns about whether she can really be impartial. Yet she has shown no indication that she will recuse herself. Now, Larry, that is what is ‘simply amazing.’

Should Kagan Recuse Herself from the Obamacare Case?

Paul Jossey — Tue, 15 Nov 2011 11:02:00 GMT

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.