WASHINGTON, D.C., June 29, 2012, (LifeSiteNews.com) – Elena Kagan’s decision to vote on Thursday’s health care ruling may have violated judicial ethics and federal statute, legal experts say. As Solicitor General, Kagan appointed the head of the legal team that formulated the president’s legal defense of the health care reform bill, signaling a possible conflict of interest. Her participation, according to liberals and conservative scholars alike, casts a pall over the outcome.
“Her evident refusal to explain why she hasn’t recused herself given all the substantial information out there, taints the decision,” Judicial Watch President Tom Fitton told LifeSiteNews.com.
“We can be all upset, and rightly so, about [Chief Justice John] Roberts signing on to this terrible, judicial activist decision,” he said, “but in terms of good government there is now substantial question about the legitimacy of the decision, because of the outstanding questions about Kagan’s participation in the ObamaCare defense when she was Solicitor General.”
Federal statute 28 U.S.C. 455 demands that a judge must step aside “in any proceeding in which his impartiality might reasonably be questioned” or in which he (or she) “participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy.”
“Elena Kagan should have recused herself from this decision, considering she was Solicitor General during the highly contentious Congressional debates over the Affordable Care Act,” constitutional scholar John W. Whitehead, president of The Rutherford Institute, wrote in an e-mail to LifeSiteNews.com. “She was certainly in a position which would call into question her ability to be impartial in her ruling.”
After a contentious Freedom of Information Act request, Judicial Watch secured the text of multiple e-mails and the Vaughn index, which refers to seven e-mails written from March 17-21, 2010. Kagan was copied on three e-mails that discuss “what categories of legal arguments may arise and should be prepared in the anticipated lawsuit.” Another four dealt with “expected litigation” against the health care law.
On January 8, 2010, Brian Hauck, Senior Counsel to Associate Attorney General Thomas Perrelli, wrote to Kagan’s deputy, Neal Katyal, asking for the office’s assistance in “how to defend against the inevitable challenges to the health care proposals that are pending.” Three minutes later, Katyal replied, “Absolutely right on. Let’s crush them. I’ll speak with Elena and designate someone.” After Katyal volunteered, Kagan responded, “You should do it.”
A few hours later, Katyal updated Hauck, writing, “Brian, Elena would definitely like OSG [the Office of Solicitor General] to be involved in this set of issues.” Katyal added,”I will handle this myself, along with an Assistant from my office, (Name Redacted), and we will bring Elena in as needed.” (Emphasis added.)
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When Katyal suggested Kagan should attend a meeting “to help us prepare for litigation,” Kagan ended the paper trail cold, responding, “What’s your phone number?”
Katyal would later insist Kagan had been “walled off from Day One,” and he had “never discussed the issue with her one bit.”
Kagan and Lawrence Tribe later exchanged e-mails celebrating the passage of the health care law.
Sen. Jeff Sessions, R-AL, called Kagan’s appointment of Katyal, “the legal equivalent of a firm’s senior partner delegating work to a junior associate.” Citing the Tenth Circuit Court’s ruling in United States v. Gipson and other precedents, Sessions argued that Kagan’s actions are all the law “requires to trigger mandatory recusal.”
It is not merely conservatives who believe Kagan should have stepped aside.
Eric Segall, who describes himself as “a liberal constitutional law professor for more than 20 years, and a loyal Democrat,” wrote in Slate, “Elena Kagan should recuse herself from hearing challenges to the act.” He said even “the lack of certainty points to recusal, because it raises serious doubts…about the appearance that a Supreme Court Justice with a conflict of interest is sitting on a major case.” He noted no other justice had been as closely tied to a lawsuit as Kagan is to ObamaCare.
“She ought to step aside,” he wrote. “Nothing less than the integrity of the Supreme Court is at stake.”
During her confirmation hearings, Kagan pledged to recuse herself if “officially formally approved something” or “played a substantial role.”
Although that falls short of the legal standard, Chief Justice Roberts has taken a hands-off approach, writing at the end of last year that, because of the justices’ “exceptional integrity” and “character,” he had “complete confidence in the capability of my colleagues to determine when recusal is warranted.”
Fitton wrote in a letter to Kagan that he did not call on her to recuse herself but demanded she “address the facts surrounding your tenure as Solicitor General” and her role in the PPACA legal defense “‘as they existed,’ not as they are being ‘surmised or reported.’” Yet she has refused to clarify her role in the defense.
“Her silence certainly does not instill faith that there isn’t something there that would cause even greater concern,” Fitton told LifeSiteNews.
For years, Judicial Watch has led the legal effort to uncover Kagan’s role in the administration’s defense of the unpopular and far-reaching law, and determine if she is required to refrain from weighing in on the case.
Fitton told LifeSiteNews.com the fight would continue. “This issue is not over,” he said.
The organization is currently in another lawsuit, requesting all calendars, agenda, and phone logs for the meetings their previous document cache revealed.
“I predict we’re still going to get documents about the Kagan question. It surely will be interesting to see what they disclose.”