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Will Kagan -- and Recusal Law -- Cost Obamacare a Vote?

The opinions expressed by columnists are their own and do not necessarily represent the views of

What are the odds that while serving as President Barack Obama's solicitor general, Elena Kagan never expressed her opinion about lawsuits that were filed challenging the constitutionality of Obamacare?


If Kagan did express her opinion, federal law requires the she be disqualified from those cases if she is confirmed as a justice and they come before the Supreme Court.

In a court often divided 5-4 -- and where Kagan is replacing Justice John Paul Stevens, one of the court's most reliable liberal votes -- the law in question may well cost Obama the deciding vote on the constitutionality of the most monumental piece of legislation he will ever sign.

On March 23, Obama signed his health care law forcing all Americans to buy health insurance. The same day, Florida filed suit challenging the constitutionality of the law. Many other states joined Florida in the suit. Virginia filed a constitutional challenge of its own on the same day.

Seven weeks later -- on May 10 -- Obama nominated Kagan to the Supreme Court. Was Kagan mum on the legal challenges to Obamacare all those seven weeks?

Twenty-eight U.S. Code 455 says: "(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. (b) He shall also disqualify himself in the following circumstances: ... (3) 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."


Professor Ronald Rotunda, a legal ethics expert who teaches at the Chapman University School of Law, testified on the ramifications of this law during the Senate Judiciary Committee's confirmation hearings on Kagan. Rotunda told the committee Kagan would need to recuse herself from any case in which at any time during her tenure as solicitor general she had expressed an opinion on its merits.

Rotunda said it did not matter whether Kagan was ever formally a counsel in the case or whether she expressed her opinions in writing or only verbally.

"In short, Solicitor General Kagan should disqualify herself in all instances where participated as counsel, 'adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy,'" Rotunda told the committee in his written testimony (emphasis in original). "Her disqualification does not limit itself to cases where she is counsel of record."

"In all of these circumstances, it does not matter if her advice was oral or written, because the statute does not draw that distinction," Rotunda told the committee.

In the written answers Kagan submitted in a questionnaire returned to the Judiciary Committee before Rotunda gave his testimony, Kagan said she would comply with the "letter and spirit" of 28 U.S.C. 455.


"If confirmed, I would recuse in all matters for which I was counsel of record," she said. "I would also look to the letter and spirit of the Code of Conduct for United States Judges (although it is not formally binding on members of the Supreme Court of the United States), the Ethics Reform Act of 1989, 28 U.S.C. 455, and any other relevant prescriptions."

When she testified before the committee, Chairman Patrick Leahy, the Vermont Democrat, asked her when she would recuse herself. In response, Kagan did not cite 28 U.S.C. 455, and her answer to Leahy was somewhat narrower than her answer in the questionnaire. She would recuse herself, she indicated, from cases on which she had been the "counsel of record" and when she had "officially, formally approved something" in a case.

In written questions submitted to Kagan for the record, Sen. Jeff Sessions of Alabama, the ranking Republican on the Judiciary Committee, cited 28 U.S.C. 455 and tried to make Kagan specify in greater detail when she would recuse herself. In response to Sessions, Kagan listed 10 cases coming before the court in its next session on which she had been the "counsel of record" and would thus need to recuse herself. (These do not include the health care cases.) She also conceded she would recuse herself when she had given "advice" on a case.


"If I gave advice about the government's litigating position or the content of a filing, then I would recuse myself from the case," Kagan said in her written responses to Sessions. "In my view, this level of participation in a case would warrant recusal."

On July 13, all seven Republicans on the Senate Judiciary Committee signed a letter to Kagan insisting she answer a series of detailed questions probing whether she was ever involved in the administration's response to -- or discussed -- Florida's suit against Obamacare.

The senators informed Kagan that her answers to their questions "are essential to the Committee's process of thoroughly reviewing your record prior to making our recommendation to the full Senate on your nomination." They are also essential to letting the American people know whether or not the Supreme Court will be a rigged jury when the constitutionality of Obamacare comes up.

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