"Legal ethics guru finds cause to doubt her independence
The attorney general’s belated release of various emails has raised the question of whether former Solicitor General Elena Kagan should disqualify herself from the case that will decide the constitutionality of Obamacare. Many people think she has already made up her mind, and for good reason. First, a little background.
During her confirmation hearings, Sen. Tom Coburn, Oklahoma Republican, asked Ms. Kagan whether Congress could require us to eat three vegetables and three fruits every day. That would make us healthier and also would affect commerce and medical costs, but it is not a commercial act. Ms. Kagan could have said that she would not respond to that question because it is the pivotal issue in Obamacare - the “individual mandate” that requires people to buy health insurance. Or she could have said that precedents say that Congress cannot regulate something that affects commerce unless it is a commercial act. Instead, she said, “I think it would be wrong to strike down” such laws. In effect, she decided the individual mandate issue.
At her hearings, she said she would recuse herself from any case in which she “officially formally approved something” or “played a substantial role.” But that is not the test that the federal statute imposes. It requires Justice Kagan to disqualify herself if she, as a federal employee (solicitor general) “participated as counsel” or as an “adviser,” or she “expressed an opinion concerning the merits of the particular case in controversy.”
The government (after much prodding) has released emails that raise serious questions whether she, in fact, expressed any opinion regarding the constitutionality of Obamacare. We know that her deputy solicitor general emailed her about the issue, and she replied that she wanted to talk over the phone (with no paper trail). We know that emails also showed that her deputy solicitor general at that time believed Ms. Kagan “definitely” wanted her office involved in the administration’s defense against those legal challenges. The deputy solicitor general was the public face involved in the defense while she stayed in the background, but that does not excuse complying with the statute.