Category Archive 'Recusal'

09 Dec 2011

Liberal Law Professor Says Kagan Must Recuse Herself

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It doesn’t happen very often, but once in a blue moon you actually find a liberal exhibiting intellectual honesty and standing up for real principles. George State Law Professor Eric Segall has the audacity to tell the readership of Slate that, yes, Elena Kagan really should be recusing herself from participating in the Supreme Court decision on Obamacare. And he is dead right.

Doing the right thing is easy when nothing important is at stake. Doing the right thing is much harder when there is a lot to lose. Elena Kagan is a loyal Democrat who owes her Supreme Court appointment to President Barack Obama.* She is poised to review the constitutionality of Obama’s health care statute, which, if invalidated, might do serious damage to his re-election campaign as well as the Democratic Party. Even though it would be a hard decision to make, Elena Kagan should recuse herself from hearing challenges to the act.

So far it appears that only Republicans and conservatives want Kagan to recuse herself from hearing the case, while liberals and Democrats take the opposing view. I have been a liberal constitutional law professor for more than 20 years, and a loyal Democrat. I believe the Affordable Care Act is constitutional and that it would be truly unfortunate for the country (and the party) if the court strikes it down. I also recognize that there is a much greater chance of the court erroneously striking down the PPACA if Kagan recuses herself. That said, I believe that as a matter of both principle and law, Kagan should not hear the case.

But what are the odds that she has as much integrity as he does?

19 May 2011

Did Justice Kagan Break the Law By Failing to Recuse Herself?

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One of the problems with appointing prominent members of a presidential administration to the Supreme Court is the issue that if litigation connected with a piece of legislation or executive order that official had a hand in crafting should subsequently occur, he (or she) might find it necessary to recuse himself from participation in the case.

Recusal is not an optional choice. 28 U.S.C. § 455 specifically states:

Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. …

(including)

Where he 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.

Supreme Court Associate Justice Elena Kagan has denied being involved in preparations for court defense of Obamacare while she was serving as Solicitor General, and declined to recuse herself from the Supreme Court decision of April 2011 refusing to “fast-track” for review Virginia’s lawsuit challenging Obamacare.

Judicial Watch sued under the Freedom of Information Act and has obtained documents suggesting that Justice Kagan may have a serious problem here.

According to a January 8, 2010, email from Neal Katyal, former Deputy Solicitor General (and current Acting Solicitor General) to Brian Hauck, Senior Counsel to Associate Attorney General Thomas Perrelli, Kagan was involved in the strategy to defend Obamacare from the very beginning:

    Subject: Re: Health Care Defense:

    Brian, Elena would definitely like OSG [Office of Solicitor General] to be involved in this set of issues…we will bring in Elena as needed. [The “set of issues” refers to another email calling for assembling a group to figure out “how to defend against the…health care proposals that are pending.”]

On March 21, 2010, Katyal urged Kagan to attend a health care litigation meeting that was evidently organized by the Obama White House: “This is the first I’ve heard of this. I think you should go, no? I will, regardless, but feel like this is litigation of singular importance.”

In another email exchange that took place on January 8, 2010, Katyal’s Department of Justice colleague Brian Hauck asked Katyal about putting together a group to discuss challenges to Obamacare. “Could you figure out the right person or people for that?” Hauck asked. “Absolutely right on. Let’s crush them,” Katyal responded. “I’ll speak with Elena and designate someone.”

However, following the May 10, 2010, announcement that President Obama would nominate Kagan to the U.S. Supreme Court, Katyal position changed significantly as he began to suggest that Kagan had been “walled off” from Obamacare discussions.

For example, the documents included the following May 17, 2010, exchange between Kagan, Katyal and Tracy Schmaler, a DOJ spokesperson:

    Shmaler to Katyal, Subject HCR [Health Care Reform] litigation: “Has Elena been involved in any of that to the extent SG [Solicitor General’s] office was consulted?…

    Katyal to Schmaler: “No she has never been involved in any of it. I’ve run it for the office, and have never discussed the issues with her one bit.”

    Katyal (forwarded to Kagan): “This is what I told Tracy about Health Care.”

    Kagan to Schmaler: “This needs to be coordinated. Tracy you should not say anything about this before talking to me.”

Included among the documents is a Vaughn index, a privilege log which describes records that are being withheld in whole or in part by the Justice Department. The index provides further evidence of Kagan’s involvement in Obamacare-related discussions.

For example, Kagan was included in an email chain (March 17–18, 2010) in which the following subject was discussed: “on what categories of legal arguments may arise and should be prepared in the anticipated lawsuit.” The subject of the email was “Health Care.” Another email chain on March 21, 2010, entitled “Health care litigation meeting,” references an “internal government meeting regarding the expected litigation.” Kagan is both author and recipient in the chain.

The index also references a series of email exchanges on May 17, 2010, between Kagan and Obama White House lawyers and staff regarding Kagan’s “draft answer” to potential questions about recusal during the Supreme Court confirmation process. The White House officials involved include: Susan Davies, Associate White House Counsel; Daniel Meltzer, then-Principal Deputy White House Counsel; Cynthia Hogan, Counsel to the Vice President; and Ronald Klain, then-Chief of Staff for Vice President Biden. The DOJ is refusing to produce this draft answer.

Judicial Watch describes itself as conducting an ongoing investigation of the matter.

The documents obtained so far fail to produce absolute “smoking gun” proof that Kagan violated the law in failing to recuse herself, but all the evidence of collaboration over accounts is extremely suggestive.

Ace aptly observes:

Just a crazy question here — has anyone said “We’ve got to get our stories straight” when everyone involved was planning on telling the truth?

Are “coordinated” stories generally more credible than uncoordinated, unscripted ones? I guess the Obama White House thinks so.

“Coordination”

It’s a hip, smart way to say “lying.”


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