Right-wing media have suggested that Justice Elena Kagan acted illegally by not recusing herself from a case challenging the constitutionality of a provision in the health care reform legislation due to her prior job as solicitor general. In fact, Kagan has said that she did not participate in litigation dealing with health care reform, nor did she comment on the ensuing law's constitutionality.
Right-wing media suggest Kagan should recuse herself from health care cases
LifeNews.com suggested Kagan's role as solicitor general should bar her from participating in health care cases. In a November 9 article reporting that the Supreme Court refused to hear a challenge to the constitutionality of a provision of the health care reform legislation, LifeNews.com cited a July 13 Wall Street Journal editorial that called for Kagan to recuse herself from health care reform-related cases, suggesting that Kagan should not "decide the fate of ObamaCare" because of her role in the Obama administration. While LifeNews.com noted that "Kagan denied she played any role in fashioning the ObamaCare legislation or assisting Obama or his officials on it," the article went on to quote from a letter by the conservative Judicial Crisis Network saying Kagan should recuse herself.
The LifeNews.com article also suggested that recusal was required by federal law, stating:
Under federal law (28 U.S.C., 455(b)(3)), judges who have served in government must recuse themselves when they have "participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy."
A federal judge is required by law to recuse himself "in any proceeding in which his impartiality might reasonably be questioned."
Ace of Spades accused Kagan of violating ethics in deciding on health care challenge. In a November 9 post on his blog, Ace of Spades, Ace wrote: "As expected: Kagan refuses to recuse herself from deciding, as a judge, on the constitutionality of ObamaCare that she advocated for as an administrative official." He cited an excerpt from the Life News article, stating: "Ethics don't apply when you're waging truth."
Kagan said she did not work on health care reform-related issues as solicitor general
Kagan said she never offered an opinion on the constitutionality of the health care reform legislation. Responding to a series of written questions on health care reform recusal -- issued by Republican senators following the Journal editorial -- Kagan wrote that she had not been asked her opinion about legal or constitutional issues related to any proposed health care legislation or to potential litigation resulting from such legislation. She also wrote that she had not offered any views or comments on those issues.
Kagan said she did not offer any opinion on the litigation seeking to have the health care reform law declared unconstitutional. Kagan also stated that she did not participate in the specific case that the Journal mentioned: "I did not participate in Florida v. U.S. Department of Health and Human Services, so I do not have any firsthand knowledge of the filings in that case." Additionally, she wrote: "In Florida v. U.S. Department of Health and Human Services, I neither served as counsel of record nor played any substantial role. ... Therefore, I would consider recusal on a case by-case basis, carefully considering any arguments made for recusal and consulting with my colleagues and, if appropriate, with experts on judicial ethics."
WSJ backed away from argument that Kagan should recuse herself. After its July 13 editorial calling for Kagan to recuse herself from cases dealing with health care reform, The Wall Street Journal wrote on July 22:
We have no reason not to take Ms. Kagan at her word. Enough people work in Justice who would know if she were not telling the truth, and it would be severely damaging to her credibility on the High Court if such a claim later surfaced. We doubt Ms. Kagan would take such a risk.