Senate Republicans Demand Answers from Kagan on Whether She Must Recuse Herself from Constitutional Challenges to Obamacare

By Terence P. Jeffrey | July 13, 2010 | 3:47 PM EDT

Supreme Court nominee Elena Kagan smiles as she arrives on Capitol Hill in Washington, Monday, June 28,2010, for her confirmation hearing before the Senate Judiciary Committee. (AP Photo/Alex Brandon)

( - All seven Republicans on the Senate Judiciary Committee sent a letter today to Solicitor General Elena Kagan demanding information about whether she at any time as a member of the Obama administration discussed the suit filed by Florida and numerous other states challenging the constitutionality of the health-care law signed by President Barack Obama--an action that under federal law could require Kagan to recuse herself from the case if she is confirmed as a justice and it comes before the Supreme Court.
In the letter, the Judiciary Committee Republicans pose 13 questions to Kagan. The first seven directly probe whether she was in anyway involved in the administration’s planning or response to the lawsuit brought against Obamacare by Florida and other states. Questions eight and nine probe whether she discussed the underlying constitutional issues involved in the health care legislation. Question ten asks her why she should not recuse herself from ruling on Supreme Court challenges to the health-care law if she discussed it or the underlying constitutional issues during her service in the Obama administration.
“If your answer is 'yes' to any of question (1) to (9) or you were otherwise consulted regarding Pub. L. No. 111-148 [the health-care law],” the senators ask, “will you recuse yourself from any related case, should you be confirmed?”
The senators say Kagan’s answers to their questions are “essential” to properly concluding her confirmation process. “You answers to our questions are essential to the Committee’s process of thoroughly reviewing your record prior to making our recommendation to the full Senate on your nomination.”
A federal law--28 U.S.C. 455—states that a justice who formerly was a government employee is disqualified from ruling in any case where she “expressed an opinion concerning the merits of the particular case” while in government employment.
In the questionnaire she filled out for the Senate Judiciary Committee prior to her confirmation hearings, Kagan expressly stated that she would abide by the letter and spirit of this law.
When asked by the committee when she would recuse herself as a justice, Kagan wrote: “If confirmed, I would recuse in all matters for which I was counsel of record. I would also look to the letter and spirit of the Code of Conduct for United States Judges (although it is not formally binding on members of the Supreme Court of the United States), the Ethics Reform Act of 1989, 28 U.S.C. 455, and any other relevant prescriptions. I would also consult with my colleagues in any case where recusal might be advisable.”

Kagan gave a narrower answer, however, during her oral testimony in the confirmation hearings. When asked by Senate Judiciary Chairman Patrick Leahy (D.-Vt.) when she would recuse herself from cases as a justice, Kagan did not mention 28 U.S.C. 455 or the strict condition it imposes.
“I think certainly, as I said in that questionnaire answer, that I would recuse myself from any case in which I've been counsel of record at any stage of the proceedings, in which I've signed any kind of brief,” Kagan testified. “And I think that there are probably about 10 cases. I haven't counted them up particularly, but I think that there are probably about 10 cases that are on the dockets next year in which that's true, in which I--I've been counsel of record on a petition for certiorari or some other kind of pleading. So that's a flat rule.

“In addition to that,” said testified, “I said to you on the questionnaire that I would recuse myself in any case in which I'd played any kind of substantial role in the process. I think that that would include--I'm going to be a little bit hesitant about this, because one of the things I would want to do is--is talk to my colleagues up there and make sure that this is what they think is appropriate, too -- but I think that that would include any case in which I've officially formally approved something. So one of the things that the solicitor general does is approve appeals or approve amicus briefs to be filed in lower courts or approve interventions.”

Prof. Ronald Rotunda, a professor at the Chapman University School of Law and an expert on legal ethics, testified in the Judiciary Committee on July 1 on the question of when Kagan would need to recuse herself on the Supreme Court. Rotunda told the committee that under 28 U.S.C. 455 Kagan could not rule in any case in which she had expressed an opinion as a member of the Obama administration whether or not that opinion was “oral or written.”

“Solicitor General Kagan obviously is correct when she says that she must recuse herself in all cases in which she is counsel of record,” Rotunda said in written testimony presented to the committee. “However, her obligation to disqualify herself does not stop there. She also must recuse herself in all situations where she was an adviser ‘concerning the proceeding’ or where she ‘expressed an opinion concerning the merits of the particular case in controversy.’
“In short, Solicitor General Kagan should disqualify herself in all instances where participated as counsel, ‘adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy.’ Her disqualification does not limit itself to cases where she is counsel of record,” Rotunda testified.
“In all of these circumstances, it does not matter if her advice was oral or written, because the statute does not draw that distinction,” Rotunda testified.
In an executive meeting of the Senate Judiciary Committee today, Sen. Jeff Sessions of Alabama, the ranking Republican on the committee and signer of the letter the Republicans today sent to Kagan, cited the recusal mandate of 28 U.S.C. 455 and said the committee needed answers from Kagan.
“Federal judges are required by law to recuse or disqualify themselves in any proceeding in which [their] impartiality might reasonably be questioned,” said Sessions. “Justices and judges who served, like Ms. Kagan, as government lawyers also must recuse themselves where, in that capacity, they participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy. At bottom, if Ms. Kagan was involved in any way, she must recuse herself. It is crucial to the Senate's advice and consent function both to reach appropriate conclusions as to the facts and to act in a manner that ensures the impartiality (in substance and appearance) in our system of justice. For that reason, I am hopeful that Ms. Kagan will answer our questions regarding her participation in this matter in an open, simple and forthright way.” 

The Judicial Crisis Network,  conservative watchdog group that closely monitors the judicial nomination process, also weighed in on the issue today, sending a letter to Senate Judiciary Chairman Leahy and ranking member Sessions stating their belief that it is “exceedingly likely” that Kagan at least expressed her opinion on the constitutional challenge to the health-care law, thus triggering the legal requirement for her to recuse herself from any case involving it.
“If she is confirmed as an Associate Justice of the Supreme Court, Solicitor General Elena Kagan must recuse herself from taking any part in the Court’s consideration of Florida et al. v. HHS, if and when that case reaches the Court’s docket, because it is highly likely that Kagan played an official role in the administration’s response to the lawsuit,” said the letter, signed by JCN Executive Director Gary Marx and JCN Chief Counsel Carrie Severino. “Senators should demand no less.”
“It is exceedingly likely that, when the States’ challenge to the new health law was filed in March, 2010, Kagan participated as counsel or advisor to the Administration on the matter, or at least expressed her opinion on the case's merits at that time,” wrote Marx and Severino. “This is the case because it is standard DOJ practice to discuss and exchange opinions about key pending legislation as a routine part of various daily and weekly senior staff meetings. The notion that this routine behavior was not in place with regard to the most significant constitutional challenge to the Administration’s key legislative accomplishment is difficult, if not impossible, to credit.”