...Elena Kagan is a loyal Democrat who owes her Supreme Court appointment to President Barack Obama.* She is poised to review the constitutionality of Obama’s health care statute, which, if invalidated, might do serious damage to his re-election campaign as well as the Democratic Party. Even though it would be a hard decision to make, Elena Kagan should recuse herself from hearing challenges to the act.
So far it appears that only Republicans and conservatives want Kagan to recuse herself from hearing the case, while liberals and Democrats take the opposing view. I have been a liberal constitutional law professor for more than 20 years, and a loyal Democrat. I believe the Affordable Care Act is constitutional... That said, I believe that as a matter of both principle and law, Kagan should not hear the case.
...As many have pointed out, there are legitimate arguments that these rules point to recusal. Was Kagan a “counsel” or “adviser” on this issue? We know that she was on an e-mail exchange between her top deputy, Neal Katyal, and Associate Attorney General Tom Perrelli, about a meeting to discuss the litigation strategy for the ACA litigation, and lawyers in her office would be present. We also know she attended at least one meeting where the litigation was discussed... We don’t know how fully Kagan was involved because the White House (perhaps for legitimate reasons unrelated to this controversy) has not released all of the relevant emails about the matter...
We also know that Kagan wrote an e-mail to Laurence Tribe, a famous Harvard constitutional law professor who was also working for the administration at the time the law passed, in which she said, “I hear they have the votes, Larry!! Simply amazing.” The email's subject line was "fingers and toes crossed today!"
...She served as the solicitor general of the United States during the time that the ACA was furiously debated in Congress, discussed in town halls across the country, and enacted... [and] We know she celebrated the passage of the law.
...The Supreme Court is increasingly seen as a partisan political institution making political decisions instead of a true court deciding cases under the law. Justice Kagan has a golden moment to display that at least one Supreme Court justice has integrity and character that exceed her party loyalty and political past. If she sees herself as a political official who, because of the office she occupies, gets to cast an important vote on an issue that may decide an election, she should stay on the case. But, if she views herself as a judge of law who is obligated to approach legal issues objectively and open-mindedly without regard to partisan political outcomes, she ought to step aside. Nothing less than the integrity of the Supreme Court is at stake.
Thank you, professor, for demonstrating that at least one Democrat is capable of publicly advocating an ethical and intellectually honest course of action for Justice Kagan.
Hat tip: Mark Levin.