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Calls for Kagan Recusal Intensify as More Emails Surface

The calls for Elena Kagan to recuse herself for the Obamacare hearings have intensified in recent days, even as 47% of Americans wish to see the intrusive health care reform law repealed.


As Guy noted on Monday, emails have surfaced providing some damning evidence that Kagan isn't exactly impartial on the issue of healthcare reform. Jennifer Rubin at the Washington Post points to three particularly worrisome missives, including her now-notorious reaction to its passage in Congress:

An October 13, 2009, exchange between Kagan and former Deputy Solicitor General (and current Acting Solicitor General) Neal Katyal. Katyal informs Kagan, “We just got Snowe on health care,” referring to Senator Olympia Snowe (R-ME). . .

A March 21, 2010, email from Kagan to then-Senior Counselor for Access to Justice Laurence Tribe: “I hear they have the votes Larry!! Simply amazing. . .” Tribe responds, “So healthcare is basically done! Remarkable.”

A March 16, 2010, email from Kagan to David Barron, then-acting head of the Justice Department’s Office of Legal Counsel, asked if he had seen an article by Michael McConnell published in the Wall Street Journal that discussed a strategy by Democrats to “‘deem’ ObamaCare into Law without voting.” “Did you seee [sic] Michael McConnell’s piece in the wsj?” Kagan writes in an email with the subject line “Health care q.” “YES, HE IS GETTING THIS GOING,” replied Barron.


Clearly, she had favorable feelings toward healthcare -- her enthusiasm in the second email here has been discussed at large -- but that wouldn't necessarily require she recuse herself. Recusal typically results when a conflict of interest prevents an impartial ruling, and simple enthusiasm for the law doesn't count as a legitimate conflict of interest.

Helping to craft the legal defense for Obamacare would, and while Kagan denies having participated in that effort, it seems she may have been more involved than she let on in her confirmation hearing.

The National Review Online pointed to a memo from the Judicial Crisis Network, in which the JCN compiled some documents released as a part of JudicialWatch's FOIA request of the Justice Department. Kagan, it seems, was marginally involved in devising the legal defense:

Kagan personally assigned her deputy Neal Katyal to be part of “a group to get thinking about how to defend against inevitable challenges to the health care proposals that are pending.” (The quote is from an e-mail query from the Associate Attorney General’s office.) Katyal then informed the Associate Attorney General’s office that “Elena would definitely like OSG [the Office of the Solicitor General] to be involved in this set of issues,” that he will handle the matter, and that “we will bring Elena in as needed.”

– Katyal copied Kagan on his advice to Associate Attorney General Thomas Perrelli that DOJ “start assembling a response” to a draft complaint “so that we have it ready to go.” In context, it’s clear that he’s inviting her to state any disagreement that she might have. Her apparent non-response would therefore be taken by Katyal and Perrelli as expressing her agreement.

– Katyal and Kagan consulted on whether he or she should attend a White House meeting “to help us prepare for litigation” (Perrelli’s phrase) on what Katyal referred to as “litigation of singular importance.” Katyal volunteered, “I think you should go, no?”


So Kagan tasked her lawyers in the OSG with drafting the government's response to a challenge to healthcare, that much is apparent. Her involvement seems to stretch beyond watching this pass through Congress, and it's clear she utterly lacks impartiality on this issue. Rubin points out that although Kagan can't necessarily be called to recuse herself on the basis of offering legal counsel for the healthcare, she can on these grounds:

However, there is a different recusal provision that I believe is at issue. 28 U.S.C. 455 (a) provides: “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” The e-mails show that Kagan was cheering robustly for the passage of the bill and considered this an historic measure. She plainly thinks the statute is a swell idea. Shouldn’t we now reasonably question, after reading about her obvious delight in progress of the legislation, that she can put all that aside and render impartial justice? I certainly think so.

Should she not recuse herself, and instead rule on healthcare, Kagan risks her reputation as an impartial protector of the Constitution. In her confirmation hearing, she emphasized the importance of leaving politics at the Court's door, and not legislating from the bench:


Admirable principles, to be sure; ones that she ought to uphold no matter how crucial the case, no matter how much it matters to her personally. And it is precisely that personal significance that requires she recuse herself from the health care case.


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