Human Events Blog

Kagan Defended ObamaCare As Solicitor General

Until now, those who say Supreme Court Justice Elena Kagan shouldn’t recuse herself from the upcoming ObmaCare case, even though federal code clearly requires her to do so, have argued that even though she was President Obama’s Solicitor General, she was kept hermetically sealed away from anything pertaining to ObamaCare.  This was supposedly done even though the Supreme Court seat she would later occupy wasn’t vacant yet – a forward-looking move designed to keep her viable for both the Court seat, and the ObamaCare thumbs-up desperately needed by the President in a few weeks.

That excuse always seemed preposterous.  Solicitor General Kagan was kept totally out of the loop on the most important legal defense her Administration would ever mount, in order to keep her unsullied for the chance that she might sit on one of the most important cases the Supreme Court would ever hear?

Well, the Kagan firewall just went up in smoke.  Fox News reports:

With just weeks until the U.S. Supreme Court considers the constitutionality of President Obama’s health care law, there are new calls for Justice Elena Kagan to recuse herself from the case.

Her critics point to a 2010 case regarding a San Francisco health measure, in which then-Solicitor General Kagan’s office filed an amicus brief touting the newly passed health care law.

In May 2010, after Kagan had been nominated to the nation’s highest court, Principal Deputy Solicitor General Neal Katyal sent her a memo outlining the cases in which she had “substantially participated.” Kaytal specifically referenced the Golden Gate case, noting that it had been “discussed with Elena several times.”

That’s enough to convince Heritage Foundation Senior Legal Fellow Hans von Spakovsky that Kagan shouldn’t take part in the current health care case before the high court.

I don’t see how any ethical lawyer adhering to professional codes of conduct could not consider that they need to recuse themselves from this case,” he said.

(Emphases mine.)  And we all know that Obama appointees hold themselves to the highest ethical standards, don’t we?

Kagan defenders have been hilariously reduced to hair-splitting about how the “issues” in the San Francisco case were so unique that she’s still in the clear to rule on ObamaCare in general.  We really have degenerated into a banana republic if those arguments are taken seriously.

U.S. code could not be more clear on this issue.  The third condition set forth for judicial disqualification reads, in its entirety: “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.”

Until today, Kagan’s defenders pretended to understand what those words meant.  That’s why they so desperately insisted that she never went anywhere near ObamaCare during her Solicitor General days.  That argument was absurd, but everyone trying to keep her on the case at the Supreme Court understood it was vital. 

There are emails showing Kagan celebrating passage of ObamaCare during her time with the Administration, but that’s different, even though many observers find it unseemly.  It skirts the edge of the prohibition against “personal bias” on the part of judges, but the law is less concerned with appearances than with concrete relationships that compromise judicial impartiality, and ruin public trust in the judiciary.  Any reasonable person can understand the absurdity of allowing someone who actively argued one side of a case to sit in judgment upon it.

Elena Kagan evidently understands the standards for disqualification, because in December she recused herself from the Supreme Court’s hearing of the Justice Department challenge to Arizona’s immigration law, precisely because she was Solicitor General when the DOJ suit was filed. 

Game, set, match.  There’s nothing else for any ethical jurist or lawyer to discuss.  Kagan must not rule on ObamaCare.

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