Fox's Hemmer Argues For Kagan Recusal Based On Flawed Premise

Fox News anchor Bill Hemmer again trumpeted an email that Justice Elena Kagan wrote in March 2010 to further Fox News' efforts to have Kagan disqualified from hearing a case on the Affordable Care Act (ACA). In the email, written on the day the House passed the ACA, Kagan wrote: “I hear they have the votes!! ... Simply amazing.” What Hemmer failed to note however is that experts on judicial ethics, as well as his own Fox News colleagues, have rejected the idea that Kagan needs to recuse herself from the case.

On America's Newsroom, Hemmer stated: “There are two big court decisions due this spring: immigration and health care. And Justice Elena Kagan has recused herself of Arizona's immigration law but she has not done so when it comes to the president's health care law. Should she?” He later suggested that Kagan's email was “enough to build an argument that suggests that she is not neutral on this topic.”

In fact, it is misleading to equate Kagan's substantive role in the Arizona immigration case with her lack of such a role in health care reform. As guest Jay Sekulow noted, in the Arizona immigration case, Kagan “was involved in the litigation” during her time as solicitor general in the Obama administration. But on health care reform, Kagan has said she was not involved in any substantive discussions of the health care reform law, the constitutionality of the law, or litigation involving the law. And with regard to the email, as Sekulow noted, while Kagan “expressed her pleasure with the legislation,” she “didn't express her opinion on the constitutionality of it.”

Hemmer's colleagues at Fox News also don't agree that Kagan should recuse herself from hearing health care cases: for example, the Special Report panel has rejected calls that Kagan is unfit to rule, as well as host Megyn Kelly. Judicial ethics experts also agree.