It’s gone from the headlines and the news reports.

Whatever happens this week, one footnote may be whether Elena Kagan should have recused herself on the Obamacare case as she did on the Arizona immigration case.

Via Judicial Watch on March 22, 2012:

Judicial Watch, the nation’s largest government watchdog group, today sent a letter asking Supreme Court Justice Elena Kagan to address the facts surrounding her tenure as Solicitor General and the enactment and subsequent legal defense of the PPACA (Patient Protection and Affordable Care Act), as well as to provide an articulation of her reasoning behind any decision regarding recusal.

Emails previously obtained by Judicial Watch suggest that, during Justice Kagan’s tenure as Solicitor General, the Office of the Solicitor General had been more involved in the legal defense of the PPACA than had previously been disclosed.  Late last year, another set of records were produced that included an email showing what appeared to be then-Solicitor General Kagan’s excitement and support for the passage of the PPACA….

Justice Kagan has said that she was not “substantially” involved in the DOJ discussions regarding Obamacare’s constitutional or litigation issues.  The White House, despite repeated inquiries, has refused to confirm to Judicial Watch that Justice Kagan was “walled off” from Obamacare defense discussions while at the Department of Justice (DOJ).

Judicial Watch’s document file is here.  One e-mail dated January 10, 2010 (h/t Tom Thurlow) on which she was copied talked about preparing for “how to defend” against inevitable challenges to the law.  There is nothing in that e-mail that indicates Kagan actually participated in the defense, so more would have to be known.

Among other documents were emails described by Judicial Watch as follows:

  • An October 13, 2009, exchange between Kagan and former Deputy Solicitor General Neal Katyal. Katyal informs Kagan, “We just got Snowe on health care,” referring to Senator Olympia Snowe (R-ME). (The bulk of the email exchange reflects a discussion about Kagan, and also provides instructions regarding a hiring decision within the agency, although the nature of the position is unclear. When Katyal asks if Kagan wants to handle the hire via email or in person meeting, Kagan responds, “In person. I’ll call a meeting when I return.”)
  • A March 21, 2010, email from Kagan to then-Senior Counselor for Access to Justice Laurence Tribe: “I hear they have the votes Larry!! Simply amazing…” Tribe responds, “So healthcare is basically done! Remarkable.”
  • A March 16, 2010, email from Kagan to David Barron, then-acting head of the Justice Department’s Office of Legal Counsel, asked if he had seen an article by Michael McConnell published in the Wall Street Journal that discussed a strategy by Democrats to “‘deem’ ObamaCare into Law without voting.” “Did you seee [sic] Michael McConnell’s piece in the wsj?” Kagan writes in an email with the subject line “Health care q.” “YES, HE IS GETTING THIS GOING,” replied Barron.

Unlike attacks on Clarence Thomas’ participation on the case based on his wife’s work with groups opposed to Obamacare, the issue with Kagan was her own involvement with the very legislation before the Court.

I can’t say based on what is known that Kagan should have recused herself because no one has been able to go beyond the e-mails which raise questions.

I hope that her vote doesn’t make a difference, because it’s a footnote which should not have to be written on such a monumental decision.


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