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Justice Kagan Should Recuse Herself from Obamacare Case

Only in Bizarro World can you claim someone is your attorney -- and thus shielded by attorney work-product privilege -- and then insist in the very next breath that they never represented you. But that is what the Obama administration and Supreme Court Justice Elena Kagan are doing. The Obama administration refuses to release its communications with Kagan about health care litigation back when she was the administration's Solicitor General, on the grounds that they are covered by attorney work-product protection. Yet, contradictorily, it and Kagan insist that she never acted as the administration's lawyer in the matter, and thus doesn't need to recuse herself from hearing the constitutional challenges to Obamacare that will be decided by the Supreme Court this year.

Law Professor Ronald Rotunda, the co-author of a leading constitutional law treatise, says that Kagan should have recused herself from hearing the case based on the federal statute, 28 U.S.C. 455(b)(3), that forbids former government attorneys like Kagan from being involved in cases they earlier were consulted on, and the Judicial Conference's ethical guidance for federal judges. As he notes:

[Commentators have been] calling on Justice Elena Kagan to disqualify herself in the ObamaCare litigation because of her role, as Solicitor General, in preparing its constitutional defense. These calls have intensified with the release of recent emails. Justice Kagan’s supporters respond that she testified in her confirmation hearings that she had nothing to do with ObamaCare

First, her phraseology was much more precise. She said she would only recuse herself from any case in which she “officially formally approved something,” or “served as counsel of record” or “played any substantial role.” But the statute requires disqualification if Kagan, as a federal employee (she was the former Solicitor General) “participated” as an “adviser” on a matter, even if she did not give any formal advice. She also must disqualify herself if her impartiality might reasonably be questioned.

In response to a Freedom of Information (FOIA) request, the Obama Administration has turned over some emails but it refuses to turn over many others because, it says, these emails are “protected by the attorney work product doctrine.” That doctrine, the DOJ affidavit explains, covers discussion by “OSG” (Office of Solicitor General) lawyers about “legal issues, arguments, and strategy concerning anticipated” litigation over ObamaCare. So, the DOJ is simultaneously claiming that it completely walled off Kagan from any discussions involving the constitutional defense of ObamaCare, while admitting that Kagan was participating in emails discussing “legal issues, arguments, and strategy concerning” the anticipated ObamaCare litigation.

In March of 2010, there are a series of emails to or from Kagan; the subject line of all of them is “Health care litigation meeting.” The DOJ refused to disclose these emails because they discuss legal arguments for the “expected [health care] litigation.” If Kagan hermetically sealed herself from discussions on shaping defenses for ObamaCare litigation, why is she repeatedly sending and receiving emails shaping defenses for ObamaCare litigation? The Government refuses to release these emails, on grounds of a litigation privilege, while claiming that it erected such a solid wall around Kagan that she never would send or receive such emails. This wall must have more holes than Swiss cheese. If we can read theses emails, we will learn if the legal theory developed in those meetings is the legal theory that Kagan adopts when she rules on the case.

A week after the president announced her nomination to the Supreme Court, a DOJ press officer emailed the Deputy Solicitor General and asked if Kagan had been involved in the preparations for health care litigation. Notwithstanding these earlier emails, he responded, a minute later: “No she never has been involved in any of it. I've run it for the Office, and have never discussed the issues with her one bit.” A few minutes later, he forwarded that email to Kagan.

One would think, if Kagan’s Deputy was correct, that Kagan would simply say, “of course,” or, perhaps nothing. But that is not what happened. Less than two minutes later, Kagan wrote: “This needs to be coordinated. Tracy [the DOJ press officer], you should not say anything about this before talking to me.” What is there to “coordinate”? Why would Kagan suggest that they have to get their stories straight? And why “talk” instead of using emails (which leave a paper trail)?

The Judicial Conference of the United States publishes a Compendium of Selected Opinions, to guide federal judges on ethical issues. One section deals with “prior government employment.” The typical fact scenario is a government employee (often a U.S. Attorney) who becomes a judge. Several pages summarizing prior ethics opinions all say the same thing: if the U.S. Attorney was personally involved in a pending or impending matter, she must disqualify herself, and the parties cannot waive that disqualification; if she was not personally involved, but the impending matter was in her office (under her responsibility), she must disqualify herself, unless the parties waive the disqualification.

At the very least, Kagan must disqualify herself because her office was involved with the prospective ObamaCare litigation. . .

Justice Kagan should also follow Supreme Court precedent on this issue. In Schneiderman v. United States (1943). Justice Jackson refused to participate because the case began in 1939, he became Attorney General in 1940, and thus he “succeeded to official responsibility for it.”

While liberal justices like Justice Ruth Bader Ginsburg have attracted no criticism, and no calls for their recusal, despite routinely appearing before, and being honored by, liberal groups like the National Women's Law Center that fervently support the 2010 health care law and depict it as remedying a grave "moral and social wrong" akin to segregation, the more conservative justices Antonin Scalia and Clarence Thomas have been attacked by liberal journalists for attending a Federalist Society event, even though the Federalist Society took no formal position on Obamacare. The liberal journalists claim that they should not have attended this event because tables at the event were purchased by law firms involved in challenging Obamacare in court. But tables at the event were also purchased by law firms that filed briefs supporting Obamacare in court, meaning that the law firms whose attorneys attended this event were on both sides of the issue; and in any event, the mere purchase of tables at an event by law firms with a point of view about the health care law "did not violate any applicable ethics rules," and does not require recusal by a justice who attends or speaks at such an event  So it is clear that Justices Scalia and Thomas have no obligation to recuse themselves.

Former Supreme Court clerk Carrie Severino makes the case for Kagan's recusal at greater length here.  Former Justice Department lawyer Ed Whelan discusses the serious nature of the recusal issue here. Another former Justice Department lawyer gives additional reasons why Kagan may be ethically obligated to recuse herself here.

In a follow-up post,  Severino notes that even if Kagan had not advised on, or been consulted, about legal challenges to Obamacare, she might still be obligated to recuse herself, since "precedent in three federal circuits suggests that Kagan ought to recuse herself merely by virtue of being head of the Solicitor General’s office while her office worked on the case. Under that test, even if she never knew the case was being addressed, she’d still need to recuse as a justice." This is an additional, alternative reason why Justice Kagan should recuse herself from hearing the Supreme Court cases involving the health care law (such as National Federation of Independent Business v. Sebelius and Florida v. Department of Health and Human Services).

Putting aside the constitutional issues, Obamacare has also attracted criticism for harming the health care system and reducing employment. The Dean of Harvard Medical School, Jeffrey Flier, argued that Obamacare will harm life-saving medical innovation. The 2010 health care law has also been criticized by the Associated Press and others for breaking a number of campaign promises that the president made in 2008.