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

Published Thu, Dec 22 2011 2:13 PM

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.




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