Justice Kagan and the Health Care Case

I just answered a reporter's question about whether Kagan is required to recuse herself in the health care matter:

Kagan's "Simply amazing!" comment, in response to Tribe's mentioning that there appeared to be sufficient votes for passage of the health care legislation, is not enough to justify disqualification.  It could be read as simply a statement of fact -- it was amazing, regardless of one's approval of passage.   However, even as an expression of approval of passage, the comment does not indicate that the Health Care Law is her work product, or that she had any substantive role at all in its formulation and passage.  (Compare Breyer's role regarding the Sentencing Guidelines, which were his work product.)

If, in fact, Kagan participated in any litigation strategy sessions regarding the Act, however, she would clearly be disqualified under 455(b)(3) and 455 (a).  But whether she did appears to be based only on surmise, and, as I understand it, has been expressly denied.  Her denial would not in itself be enough to avoid disqualification (see Liljeberg), but just the fact that Katyal asked whether she shouldn't be at the strategy session, does not seem to be substantive enough to justify the inference that she actually attended the meeting.  Indeed, in view of the importance of the litigation strategy session and her role as SG, the fact that he asked suggests that he had a reason to ask, e.g., that she was not on a list of participants.

On what we have at this point, therefore, I don't think Kagan is required to recuse herself.

Comments

[John Steele]

Monroe, agreed. There have been hints that she worked more actively on the matter but those haven't panned out yet. This "revelation" is a big yawn to me. It would be a shame if judicial ethics became infected by ordinary partisan politics -- whether from the right or the left.

[Thomas]

Sure, the statement could be read simply as a statement of fact. Almost no one would actually read it and understand it that way in context. The natural reading the ordinary reader would assign to it is that she approves of the enactment of the law, which is enough for there to be a reasonable question about her impartiality. There's no need to move on to her work product; the fact that Kagan and the Obama administration were careful about the record of her participation and so recusal isn't, on the manufactured record, required under 455(b), isn't sufficient to negate the requirements of 455(a).

[Dan Abrams]

Really? "Simply Amazing!" from an Obama administration attorney to a left-wing law professor does not indicate approval (indeed, giddiness) over the passage? This reminds me of the spurious notion, repeated on this website by several distinguished ethicists, that a gay judge in a ten-year secret relationship had no discernable interest in presiding over the constitutionality of a law that prohibited him from marrying.

I have been to enough APRL meetings to know that legal ethics lawyers are mostly liberal politically. I continue to believe, as I did with Judge Walker, that when left wing political causes are at stake, the legal ethics community tends to find reasons to defend what should be considered plain violations of 455(a). The media, which for the most part also leans left, picks up the comments of these ethicists and reports their opinions. All of this arguably has the effect if not the purpose, of actually changing the results. In Judge Walker's case, the press sent a signal to Judge Ware that the ethics community saw no problem with Judge Walker presiding over the case. In the case of Justice Kagen, the effect may be to lessen the pressure on her to seriously consider the statute.

[Monroe Freedman]

Unfair.

What I added was that "even as an expression of approval of passage, the comment does not indicate that the Health Care Law is her work product, or that she had any substantive role at all in its formulation and passage." I also said, "If, in fact, Kagan participated in any litigation strategy sessions regarding the Act, however, she would clearly be disqualified under 455(b)(3) and 455 (a). Also, "Her denial would not in itself be enough to avoid disqualification (see Liljeberg)."

As for the liberal tag, yes I am a liberal, leaning to the left of that. However, that has not prevented me from arguing that Stephen Breyer has repeatedly violated his obligation to recuse himself, or that Judge Reinhardt should have recused himself in the gay rights appeal, or that Ginsburg was wrong to lend her name and photograph to NOW fund-raising efforts. Also, I recently pointed out on this blog that Breyer lied to the Senate Judiciary Committee in his recent testimony. In addition, I have defended conservative judges like Thomas Griffith, Alex Kozinski, and John Noonan against charges of unethical conduct.

Instead of false accusations of liberal bias, how about dealing with what I said on the merits?

[Dan Abrams]

Please accept my apologies as the post should have been written a bit more diplomatically. My comments about bias were directed not at you personally but by what I perceive to be the response of the legal ethics community in general, and had more to do with the situation involving Judge Walker than Justice Kagan. On the latter the legal ethics community's general response is only starting to emerge.

On the merits, Justice Kagan's support of the legislation cannot be viewed in a vacuum -- she was Solicitor General at the time, and attended at least one meeting in which potential challenges to the health care law were discussed. Is there a recusal case where a judge who sat in on privileged strategy sessions as an advocate for one side was later permitted to decide the case? I doubt it.

Given her government involvment she could not be a private attorney on the case without committing a federal crime. Her downright giddiness at seeing the bill passed (or about to pass) is really just icing on the cake -- no way she should hear the case.

[Monroe Freedman]

I was not aware that she attended at least one meeting in which potential challenges to the health care law were discussed. If so, she is certainly required to recuse herself.

A much worse illustration of a government lawyer actively involved in advocating one side, and then sitting on the case as a justice,is Rehnquist (who then went on to lie about it). Detailed in ULE 216-226 (4th ed., 2010).

[Thomas]

My understanding is that the DOJ has asserted that portions of the email correspondence Kagan received concerning the litigation are covered by the (b)(5) FOIA exemption. It seems on that record that the DOJ believes she participated in the litigation. The document that DOJ has disclosed make it clear that Kagan directed that her deputy participate in planning for litigation, which means she participated as counsel. There's no need to show she went to any meetings to demonstrate that recusal is required.

[Monroe Freedman]

Thomas, you say, "Kagan directed that her deputy participate in planning for litigation, which means she participated as counsel."

Isn't that a non sequitur?

If she avoided going to any litigation strategy meetings, then it would appear that she did not "participate[] as counsel ... concerning the proceeding."

You seem to be stretching.

[Dan Abrams]

Her Senate testimony as reported by ABC news was that she was at one meeting where the litigation was discussed. Unless the discussion was about the astrological signs of the attorneys who signed the complaints, we can reasonably infer it was a strategy meeting.

[Monroe Freedman]

I'm surprised not to have seen the testimony quoted anyplace, but, if that is so, then she is required to disqualify herself.

[Dan Abrams]

I have not seen the transcript either. Here is the ABC article.

http://abcnews.go.com/blogs/politics/2011/11/groups-suggest-elena-kagan-clarence-thomas-should-be-recused-from-health-law-decision/

[Thomas]

Selecting counsel is one thing that lawyers often do, in government service and outside. If a client describes a set of facts to me and asks me to locate a lawyer within my firm to assist them, I'm serving my client as a lawyer, and participating in that matter as counsel, even if only to a limited extent. That's what Kagan did in the health care matter. And note that there's no materiality qualifier in 455(b)(3).