Ron Rontunda's article lays out the case for the notion that Justice Kagan participated in the health care matter when she was Solicitor General. As before, I don't see that case as being made -- that she participated as counselor or adviser in that matter. I would have advised her not to send any of the mails that Rotunda cites, and would have advised her to be very clear with her staff about not sending emails to her about the health care case. She also apparently sat in a meeting where others discussed the case. So, there is some smoke but I don't see any fire yet. I'm curious about the emails that aren't being produced. Your thoughts may vary and please don't be shy to lay out your views politely in the comments.
I wanted to recap the evidentiary grist for the various pro-recusal arguments I have heard or read:
1. There was a series of emails by and to Kagan which make short references to the healthcare litigation.
2. There was apparently a phone call after one of those emails, but we don't know what was said.
3. There are emails that have not been produced, on the grounds of privilege.
4. There was a meeting at which there apparently was discussion of the litigation. Kagan was present and did not leave the meeting while that discussion took place, but she says that she did not participate in that discussion.
5. Kagan apparently chose the person who would head-up the litigation in her stead.
6. Kagan had an email exchange when the health care statute passed. The email can be interpreted in different ways, but to me it does seem celebratory.
7. The fact that Kagan chose this matter for special treatment (i.e., being screened off so that she would be able to participate as a SCOTUS justice). Does that reflect an appropriate concern for the nation's need to avoid a possible 4-4 vote, or does it reflect a desire to protect the legacy of the administration?