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Should Justice Kagan Recuse Herself from the ObamaCare Case?

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by Publius
Posted December 05, 2011, 9:26 PM

Former attorney general Michael Mukasey wrote an op-ed in the Wall Street Journal today claiming that neither Justice Thomas nor Justice Kagan should recuse themselves from the ObamaCare case:

it is clear that neither justice should step aside. The court we have should decide the case.

Justice Kagan served as solicitor general in the Obama Justice Department before she was nominated to the bench. The solicitor general heads the small team of lawyers who represent the federal government before the Supreme Court, and coordinates and controls the government's litigation positions in the various federal courts of appeal and occasionally even in district courts.

Although critics have portrayed Justice Kagan during her tenure as a "cheerleader" for the health-care bill, and although she did send an email to a former faculty colleague that applauded the legislation, the solicitor general ordinarily is not called on to advise on issues of constitutionality of proposed legislation; that task usually falls to the Office of Legal Counsel. There has been no evidence that she acted personally in her official capacity as solicitor general in connection with any issue in the case.

As to Justice Thomas, the facts said to bear on recusal stem not from his own acts and statements, but solely from those of his wife, who has been described as a conservative activist affiliated with groups that have a position decidedly opposed to the health-care legislation and its individual mandate. But here, too, the case for recusal is flimsy at best.

In National Review Online, Carrie Severino agrees that Justice Thomas should not recuse himself but respectfully disagrees as to Justice Kagan:

First, it appears that Mukasey is basing his conclusions only on the e-mails most recently divulged by DOJ that show Kagan cheering the passage of Obamacare.  As I have stated before, these emails are not relevant to my analysis of her participation as counsel and are not the basis on which anyone is claiming she must be recused. 

Second, Mukasey assumes the Obamacare case was following the normal course en route to the solicitor general’s office and therefore that her office was not involved pre-appeal, which is a reasonable assumption. But thanks to e-mails that three FOIA requests and two lawsuits have wrested from DOJ’s “transparent” hands, we now know that the Obama administration was planning its defense of the law — with participation from the SG’s office personally approved by Kagan — months before the law was passed. Given those e-mails, we have the evidence Mukasey thought was missing — that Kagan “acted personally in her official capacity as solicitor general” in the case.

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