Virginia Attorney General Says Kagan Is Making 'Accurate and Honest Decision' About Recusal From Health Case

April 4, 2011 - 1:07 PM

(CNSNews.com) – Virginia Attorney General Ken Cuccinelli told CNSNews.com that he assumes Justice Elena Kagan is "making an accurate and honest decision" about not recusing herself from judging the case that Virginia has brought against the health-care law. He said he expects her to rule on the case.

Following his speech at Hillsdale College’s Kirby Center on Friday, CNSNews.com asked Cuccinelli if he thinks Kagan should recuse herself from the health care case.

ken cuccinelli

Kenneth T. Cuccinelli, II (Photo from Cuccinelli’s official Web site)

“She has already decided that that she’s not going to do that," Cuccinelli said. "[T]here was another case out of California that sought to expedite, as we are now, but they did a long time ago, and all nine 9 justices voted in the case and against it. And they’ll vote on everything or nothing, and the way the law is set up, that she is to decide that herself and presumably what her decision tells me is that as solicitor general, she did not participate in consideration of the case,” he said.

“So we just accept that at face value and plow ahead and know that she’ll be on the panel," said Cuccinelli. "And that’s fine with us. We--one way or another--we aim to get our five votes.”

In a follow-up question to Cuccinelli, CNSNews.com asked, “There were DOJ e-mails and communication that surfaced that when she was solicitor general, there were officials from her office that were in discussion about the health care law and the case. Given that, do you have a personal opinion whether she should recuse herself or not?”

“No, I really don’t," said Cuccinelli. "I mean, I don’t. I assume that she’s making an accurate and honest decision within the confines of the statute that governs recusal and I just accept that straight up. So, you know, other people are wringing their hands over it.

“You’re hearing similar types of attacks on Justices Scalia and Thomas," said Cuccinelli, "and we really set all of that aside and we keep our focus, eye on the ball, and our head down and keep focused on winning these arguments and refining them to make them better as we go along so that when we get in front of all 9, we’re as prepared as we possibly can be to present the best case. And I think right now, we are. We are still doing a better legal job than the other side and I think we’re carrying that forward very effectively--best in the country.”