Kagan Should Recuse Herself from ‘Any Case’ DOJ Handled When She Was Solicitor General, Virginia AG Says

By Christopher A. Guzman | August 9, 2010 | 3:56 PM EDT

In this June 30, 2010 file photo, Supreme Court nominee Elena Kagan smiles on Capitol Hill in Washington, while testifying before the Senate Judiciary Committee hearing on her nomination. On Thursday, the Senate confirmed Kagan as the 112th justice. (AP Photo/Alex Brandon, File)

(CNSNews.com) - On the same day the Senate voted to confirm U.S. Solicitor General Elena Kagan as an associate justice to the Supreme Court, Virginia Attorney General Ken Cuccinelli said he would expect Kagan to recuse herself from all Supreme Court cases dealing with “any case, not merely health care” that went through the Department of Justice while she served as solicitor general.
Kagan did not say she would do that, Cuccinelli noted, but that is his “generic expectation” of how he thinks she should deal with potential conflicts and recusal.
At a Thursday event at George Washington University in Washington, D.C., CNSNews.com asked the Virginia attorney general: “Do you agree that [Kagan] should recuse herself if she’s presented with a case regarding health care, if she expressed an opinion on it in her capacity as solicitor general?” 
Cuccinelli said, “Actually, in Virginia, my predecessor as attorney general is Bill Mims. He’s now on our supreme court and he’s recusing himself from an enormous number of cases in Virginia because they went through the AG’s office – whether he signed the brief or not – because he was associated with the law firm, the attorney general’s office that addressed the subject.”
“That’s the standard that I would expect,” said Cuccinelli. “So, I don’t think that she had to even deal with it. If it was in her law firm, the Department of Justice, while she was responsible as solicitor general, then any case, not merely health care, I would expect ordinarily would be a recusal.”
“Now she has not said that she’s going to do that, but that’s just a generic expectation,” he said. “We’ll see what happens because certainly we’re going to get there, and she’s going to get there, but we’ll have to see. That’s really up to her.”
U.S. Code 28, Section 455 says that a Supreme Court justice who was formally a government employee should disqualify herself or himself in any case in which he “expressed an opinion concerning the merits” when he was working for the government.
The law states: “(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. (b) He shall also disqualify himself in the following circumstances: … (3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy.”

Regarding that statute and the ongoing legal challenges to the new federal health care law, Cuccinelli told CNSNews.com: “They’ve established a statutory standard then. If I understand correctly, she has said that she did not [express an opinion]. And I’m not aware of any reason to doubt that. We’re proceeding under the assumption that we’re going to be seeing her on the bench when that case [health care] gets up there.”

Former Va. Attorney General and Republican gubernatorial candidate Bob McDonnell, right, speaks at a rally with Ken Cuccinelli, the Republican candidate for Va. Attorney General, left, and McDonnell's daughter, Jeanine McDonnell, in Alexandria, Va., on Monday, Nov. 2, 2009. (AP Photo/Jacquelyn Martin)

President Barack Obama praised Kagan’s recent confirmation, saying he was pleased with the decision.
“Over the past two months, the committee has scrutinized Elena’s record as a scholar, as a law school dean, as a presidential advisor, and as Solicitor General,” Obama said on Thursday, Aug. 5. “And after 17 hours of testimony during which she answered more than 540 questions, I’d say they got a pretty good look at Elena Kagan.
“They’ve gotten a good sense of her formidable intelligence, her rich understanding of our Constitution, her commitment to the rule of law, and her excellent – and occasionally irreverent – sense of humor,” said Obama. “And they have come to understand why, throughout her career, she has earned the respect and admiration of folks from across the political spectrum, an achievement reflected in today’s bipartisan vote.”
Kagan was confirmed by the Senate on a 63-37 vote – 58 Democrats and 5 Republicans voted yay and 36 Republicans and 1 Democrat voted nay. (The two Independent senators, Bernie Sanders of Vermont and Joe Lieberman of Connecticut, voted with the Democrats to confirm Kagan.)
Cuccinelli’s remarks at George Washington University were scheduled as part of a week-long National Conservative Student Conference hosted by the Young America’s Foundation.
Shortly after the federal health care bill became law, Cuccinelli, as Virginia attorney general, filed a lawsuit against the legislation, arguing that it is unconstitutional to mandate that citizens purchase health insurance or be fined.
On Aug. 2, U.S. District Judge Henry E. Hudson rejected legal arguments from the Obama administration that the commonwealth of Virginia has no standing in filing a lawsuit against the new law.
"While this case raises a host of complex constitutional issues, all seem to distill to the single question of whether or not Congress has the power to regulate – and tax – a citizen's decision not to participate in interstate commerce," Hudson wrote in a 32-page decision.
Commenting on the case at George Washington University, Cuccinelli said, “When government takes an action, like enacting that health care bill and commandeering so much of our economy and directing how we are going to live our lives, our freedom is reduced.”
In his remarks on the health care issue, Cuccinelli referenced CNSNews.com’s interviews of several congressmen about where in the Constitution is Congress given the authority to mandate that people buy health insurance, or any other product or service.
“It is amazing to me some of the most basic lessons that so many people who have been elected to Congress either don’t know or think we’re too stupid to know, or a combination thereof sometimes,” said Cuccinelli.
Because it is a commonwealth, Virginia’s lawsuit is separate from the 19 other state lawsuits that are challenging the mandate to buy health insurance.