Sessions on Kagan in Obamacare Case: Justice Should Act With ‘Highest Ethical Standards’

By Fred Lucas | December 2, 2011 | 7:10 PM EST

Sen. Jeff Sessions (R-Ala.) (AP Photo)

( – Sen. Jeff Sessions (R-Ala.) said Supreme Court Justice Elena Kagan did nothing wrong by potentially preparing a defense for Obamacare when she was the solicitor general, but stressed that a Supreme Court justice must act "in a way that's consistent with the highest ethical standards of recusal" now that litigation over Obamacare is going before the high court next spring.

“My experience back in Alabama says lawyers on the state benches, federal benches, leave their practices and go to the court,” Sessions told on Wednesday at a briefing in Washington, D.C. “If that lawyer was in a law firm and one of his subordinates was handling a case, and now he’s sitting on the bench, he can’t sit on that case."

"He would recuse himself even if he had little substantive involvement with it," said the senator. "That’s my understanding of the law. So that’s what I’m looking at right now.”

A federal law, 28 USC 455, says that a Supreme Court justice must recuse from “any proceeding in which his impartiality might reasonably be questioned” or anytime he has “expressed an opinion concerning the merits of the particular case in controversy” while he “served in governmental employment.”

“A Supreme Court justice should be acting in a way that’s consistent with the highest ethical standards of recusal,” said Sessions, a former Alabama attorney general. “If your firm has been involved with, you would recuse yourself normally. I’m looking at it and I’m studying it right now.”

In mid-November, Sessions, a senior member of the Senate Judiciary Committee, demanded written testimony from Attorney General Eric Holder about how involved Kagan was in planning the strategy to defend the Patient Protection and Affordable Care Act, popularly known as Obamcare.

“I don’t think the attorney general has provided information that has been requested,” Sessions said.

During Kagan’s 2010 confirmation process, Sen. Sessions and other Judiciary Committee Republicans asked her two questions in writing about whether she had ever been asked or had ever offered her views “regarding the underlying legal or constitutional issues related to any proposed health care legislation” or “potential litigation resulting from such legislation?” Kagan’s response to both questions was: “No.”

However, e-mails that surfaced as a result of a Freedom of Information Act (FOIA) request from and Judicial Watch, showed that there had been some communication between Solicitor General Kagan and other Justice Department officials.

Then-Solicitor General Elena Kagan testifying at her Supreme Court confirmation hearing in the Senate Judiciary Committee on June 29, 2010. (AP photo/Susan Walsh)

“What I will say is that, as solicitor general of the United States, Ms. Kagan did nothing wrong in commencing the preparation of the defense of the health care bill,” Sessions said. “What the e-mails show is that she designated her top deputy and he in the e-mail said he was keeping her informed. There’s nothing wrong about that. The question is, now that you are on the Supreme Court, have you been involved in the case to such a degree that you can’t decide it?”

Among the e-mails that DOJ released to and Judicial Watch are a Jan. 8, 2010 -mail chain in which then-Solicitor General Elena Kagan assigned her top deputy, Neal Katyal, to handle the anticipated legal challenges to Obamacare, which had passed the Senate two weeks before -- four months before President Barack Obama nominated Kagan to the Supreme Court and she recused herself as solicitor general.

In the meantime, Obamacare was enacted and lawsuits were filed against it. Katyal--the lawyer who Kagan had originally assigned to the issue--eventually argued the cases in multiple appeals courts.

In a separate Jan. 8, 2010 e-mail to an individual in the associate attorney general's office, Katyal indicated his own desire to “crush” legal challenges and said, “Elena would definitely like OSG [Office of Solicitor General] to be involved in this set of issues. I will handle this myself, along with an Assistant from my office [name redacted] and we will bring Elena in as needed.”

The e-mails released in recent weeks include a Mar. 21, 2010 exchange between Kagan and Harvard Law Proffessor Lawrence Tribe, who was working for the Justice Department in 2010. The exchange, the day Obamacare passed the House, said, “I hear they have the votes, Larry!! Simply amazing.”

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