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November 16th, 2011
Elena Kagan Must Be Recused

Supreme Court: Should a justice who participated in ObamaCare's creation recuse herself from the court's review of that law? Of course. But then a nominee who lies in confirmation hearings shouldn't be on the court anyway.

If Justice Elena Kagan were a person of character, she would sit out the Supreme Court's hearing of the challenge to the Patient Protection and Affordable Care Act.

But during her confirmation hearings in June of last year, she indicated she would not. And since this Monday, when the court announced it would take the case, she has done nothing to suggest she will recuse herself after all. Nor has the court made any statement about her recusal, a convention it usually follows when a justice takes himself or herself off a case.

Here are the facts on Kagan: She was the administration's solicitor general when ObamaCare became law last year. She has acknowledged that she was at a meeting in which state litigation against ObamaCare was discussed, though she said she was not involved in any legal responses concerning the states' litigation.

We also know that Kagan enthusiastically supported ObamaCare. This is made clear in emails released last week by the Justice Department.

"I hear they have the votes, Larry!! Simply amazing," Kagan wrote on the day ObamaCare passed the House in an email to Laurence Tribe, the Harvard law professor who was working at that time in the Obama Justice Department.

On the same day that note was sent, an associate attorney general emailed Justice Department lawyers to organize a health care litigation meeting. A Kagan deputy later emailed her suggesting that she attend.

While nothing in the chain of emails indicates Kagan was at the meeting, neither is there any evidence that she said she was not going to attend.

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Subscribe through iTunesNearly lost in this is the possibility that Kagan lied during her confirmation. She told the Senate Judiciary Committee that she had not been asked about the legal issues of ObamaCare nor had she offered any views on them. The emails, however, seem to tell a different story. Two exclamation points plainly show that in her legal opinion, ObamaCare was constitutional.

A Kagan recusal would not secure a finding against ObamaCare. Even if she were recused, it's plausible the case could end in a 4-4 vote, which isn't enough to overturn it. But her recusal would be necessary if Justice Clarence Thomas were to recuse himself. If he's out and she's not, ObamaCare is upheld at 4-4 if not 5-3.

The case against Thomas, however, is weak. He didn't work for a White House that pressed for the law. Nor is there a record of his disclosing an opinion on it. His only link is his wife, who's been involved with groups opposed to ObamaCare.

Thomas should stay. There's no conflict of interest. Kagan, though, has to recuse herself if for no other reason than to protect the integrity of the court.




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