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Elena Kagan's Telltale Recusal

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

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?

Will she recuse herself because a former subordinate -- whom she personally assigned to the issue -- is writing briefs for the administration in Obamacare cases and arguing them in federal appeals courts?

In the same Senate Judiciary Committee questionnaire in which Kagan said she had recused herself as solicitor general from Horne v. Flores, she pointed to the recusal standard she would be obliged to follow as a Supreme Court justice.

If confirmed, she said, she would "look to the letter and spirit" of 28 U.S. Code 455.

One prong of this law says that any "justice, judge or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might be reasonably questioned."

Can a reasonable person reasonably question Kagan's impartiality in the Obamacare cases? Through the Freedom of Information Act, CNSNews.com has secured some internal Justice Department emails that shine a light on the matter.

Acting Solicitor General Neal Katyal -- who has already defended Obamacare in two federal appellate courts--was personally assigned to handle the legal challenges to Obamacare by Kagan herself.

At the time, there was no doubt that both Katyal personally and the Obama administration wanted to defeat those challenges.

In January 2010, shortly after the Senate approved Obamacare, Brian Hauck, senior counsel for Associate Attorney General Tom Perelli, sent an email to Katyal, inviting Kagan's office into the process for planning to defend it in court.

"Hi Neal," Hauck wrote. "Tom wants me to put together a group to get thinking about how to defend against the inevitable challenges to the health care proposals that are pending, and hoped that OSG (Office of Solicitor General) could participate. Could you figure out the right person or people for that? More the merrier. He is hoping to meet next week if we can."

Kagan's top deputy responded with zeal: "Absolutely right on. Let's crush them."

He then forwarded Hauck's email to Kagan, volunteering himself for the job. "I am happy to do this if you are ok with it," he told Kagan. "Otherwise (Deputy Solicitor General) Ed (Kneedler) would be the natural person. Or both of us."

Kagan decisively gave Katyal the job. "You should do it," she emailed back.

Later that day, Katyal let Hauck know by return email that Kagan's office was in all the way on planning the legal defense of Obamacare.

"Brian, Elena would definitely like OSG to be involved in this set of issues," Katyal wrote. "I will handle this myself, along with an Assistant from my office (name redacted) and will bring in Elena as needed."

Now what Katyal needs is not Elena's permission to handle the case, but her vote to save her old boss's law.

Will she give it the old Harvard try?

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