As you no doubt have heard, when the passage of the Patient Protection and Affordable Care Act appeared imminent, then Solicitor General Elena Kagan sent an email to Harvard Law Professor Laurence Tribe:
“I hear they have the votes, Larry!! Simply amazing,” Kagan said to Tribe in one of the emails.
Now Kagan is going to be another vote on the Supreme Court!!
Whether she should recuse herself when the case comes before the Supreme Court is a hot topic. Ed Whelan, one of the most astute legal commentators in town, argues that she must do so.
Whelan is replying to a piece by Slate’s Dahlia Lithwick arguing that calls for Kagan’s recusal are “ridiculous:”
Lithwick first seems to imagine that it’s bizarre that anyone would think that Kagan would have to recuse herself because she “called meetings and sent e-mails and did other stuff that was her job—all in anticipation of lawsuits over the law.” But that’s exactly what section 455(b)(3) addresses. Remarkably, she doesn’t cite or quote section 455(b)(3) or explain why Kagan’s established activities don’t qualify as “participat[ing] as counsel [or] adviser.”
Federal law requires a judge who previously participated as counsel for the government in a case to recuse herself. By involving the solicitor general’s office in Obamacare-defense strategizing, by hand-picking her political deputy to manage the issue for her office, and by receiving internal, privileged information regarding defense strategy, Justice Kagan participated as counsel and therefore cannot sit on the case as a judge.
Lithwick argues that the e-mails showing Kagan exultant at the passage of Obamacare are the key to arguments for her recusal. Not so — they weren’t disclosed until the day our white paper was released and are irrelevant to that analysis. Lithwick also suggests that we fault Kagan for doing her job as SG. Wrong again: We are simply saying that her previous work has forced her recusal in over 30 cases so far, and this is another in which it should have the same effect.
There is an interesting dynamic at work here: if Kagan does help decide the case (!!) and the law is upheld, the suspicion that she may have acted improperly will dog the ruling forever!!