Terry Jeffrey

When Elena Kagan became solicitor general of the United States in March 2009, she applied a high standard in recusing herself from her job as the administration's top advocate in federal court disputes. This standard was exemplified by the case of Horne v. Flores.

Horne v. Flores, in which a school superintendent contested the efforts of federal courts to micromanage how his state's public schools helped Spanish-speaking students learn English, came out of Arizona. Kagan came out of Cambridge, Mass. -- a long way geographically and philosophically from Arizona.

So why did Kagan recuse herself from representing the Obama administration in this case?

"As solicitor general, I have never been asked to recuse myself from any matter," Kagan wrote in the questionnaire she filled out for the Senate Judiciary Committee when President Obama nominated her to the Supreme Court. "I recused myself voluntarily from one matter in the Supreme Court: Horne v. Flores, docket number 08-0289, in which the United States filed an amicus brief on March 25, 2009. I did so because of the participation of a Harvard Law School clinic in the case."

You see, before becoming President Obama's solicitor general, Kagan had been Harvard Law School's dean -- as well as a Harvard Law professor. (She served as solicitor general, she said in her Judiciary Committee questionnaire, while "on leave" from the professorship.)

Even though Harvard did not list her as a professor in the clinic that worked on the Horne v. Flores case, as Harvard Law School dean she had been the supervisor of the faculty members who were.

A brief filed on behalf of the appellants in the case was signed by former acting U.S. solicitor general Walter Dellinger of the Harvard Supreme Court and Appellate Clinic.

The Harvard Law course catalog for 2008-2009 lists Dellinger, Pamela Harris and Jonathan Hacker as the teachers for the year-long class, titled "Supreme Court and Appellate Practice Clinic."

"The clinic will focus on drafting merits briefs or amicus briefs in high-profile cases in the state supreme courts, federal courts of appeals, or the United States Supreme Court," says the catalog.

Kagan apparently recused herself from Horne v. Flores because her former faculty subordinates and students from her school had done work on it for one of the litigants.

Will Kagan now apply a similarly scrupulous standard in deciding whether to sit in judgment of the lawsuits filed against the health care law signed by President Obama while she was Obama's solicitor general?


Terry Jeffrey

Terence P. Jeffrey is the editor-in-chief of CNSNews

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