Justice Kagan, You Got Some Splainin’ To Do


As we know, Elena Kagan was the Obama Administration’s Solicitor General at the time that Obamacare was being drafted, and its legal defenses were being constructed.  As a result, some Republicans have called on Justice Kagan to recuse herself from cases involving Obamacare when they come before the Court.

 

Now this, from the Daily Caller:

Newly released documents reveal Supreme Court Justice Elena Kagan was more involved with President Obama’s health-care law than she disclosed previously. The documents likely will lead to a revival of questions about whether the Kagan should recuse herself from future cases.

In an email dated Jan. 8, 2010, then-Deputy Solicitor General Neal Katyal sent an email to Senior Counsel Brian Hauck and Deputy Attorney General Thomas Perrelli that indicates Kagan played a key role in coming up with a legal defense.

“Brian, Elena would definitely like OSG [Office of Solicitor General] to be involved in this set of issues … we will bring Elena as needed.”

In an email on March 21, 2010, Katyal urged Kagan to attend a health-care litigation meeting on defending the law. “I think you should go, no?” wrote Katyal. “I will, regardless, but feel like this is litigation of singular importance.”

This isn’t open-and-shut, of course.  The first email says that Elena wanted OSG, not herself, to be involved.  But Katyal’s response isn’t to name the deputy that Kagan wants to go in her stead, it’s to name Kagan herself.

Later, indeed 10 weeks later, Katyal is telling Kagan he thinks she should be at another meeting to craft legal strategy.  There are two ways to read this.  The first is that 10 weeks later, it’s not clear to Katyal that Kagan – his boss – wants nothing to do with this bill.  The other is that the tenor of the email is slightly pleading, making the case for the importance of the legislation.  Would Katyal need to do that if Kagan had been involved before, or perhaps the SG was busy enough that, like all subordinates, is struggling to get on his boss’s calendar.

Either way, the House Judiciary Committee should immediately subpeona any and all OSG emails concerning Obamacare, and get a court order barring the OSG or Main Justice from destroying any of them.

I’ve always personally felt that this was a matter of the appearance of impropriety as much as anything else.   While I really couldn’t imagine any Solicitor General being cut out of discussions on any administration’s signature pieces of legislation, in the absence of an actual paper trail, we’d have to take Kagan’s word for it that even if her office was involved, she was kept out of the loop.

In fact, in an article I saw several months ago (I can’t find it online now, but I’m pretty sure it was the Washington Post), a major media outlet reported that careful steps were taken to keep Kagan out of the loop on Obamacare, even before she was nominated for the Court, indeed, even before she was being discussed as a nominee.  This can only be because all parties concerned knew what was going to happen.  And indeed, at the time, Republican senators did raise the issue:

Two challenges have been levied at the law by attorneys general in Florida and Virginia. Kagan has said she would recuse herself if she had participated in reviewing a draft of a position on the law or had participated in discussions to formulate the government’s position on the legislation.

Then there’s this exchange, from Kagan’s confirmation hearings.  Most of the interrogation on the health care matter looked at Kagan’s opinions on the Commerce Clause.  But right at the end, this:

COBURN: Thank you. And my — I have two final questions. One, was there at any time — and I’m not asking what you expressed or anything else — was there at any time you were asked in your present position to express an opinion on the merits of the health care bill?

KAGAN: There was not.

That contention now appears to be seriously in doubt.

The Democrats have also engaged in a strategy not so much to politicize the Court as to recognize that the Court’s legitimacy is as much political as it is legal.  The left has, for some time, been launching frankly pathetic attacks on the right of Justices Thomas and Scalia to hear the Obamacare cases, mostly centered on the fact that Thomas and his wife hold opinions.  But if they can muddy the waters enough, they can get one of two acceptable outcomes: either both Kagan and Thomas recuse themselves, or neither does.  It’s sort of the legal version of the hockey tactic of bringing in your enforcer to start a fight with the other team’s star, in hopes that they both get thrown out.  That this sort of warfare will ultimately degrade the Court is of little consequence to those on the left, seeking a pre-determined outcome.

I’d very much want to reserve judgment on Kagan herself until we see the rest of the emails, both the ones that Daily Caller has, and the ones that they should have, but don’t.  At the moment, however, Kagan should, without doubt, recuse herself.

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