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.
[added later]
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?
FWIW - I think (3) is the most serious (and intriguing) item on the list, as there is a tension between arguing that the e-mails Kagan sent or received are privileged if she was, in fact, walled off. That said, I think the burden is on those who would argue for recusal, and that burden has not been met. (But, for the record, I also think Scalia was correct not to recuse in the Cheney case. I think the Kagan scenario is more difficult for those who argued the other side.)
There are other potential explanations for (7), including that Kagan wanted to avoid doing something that could prevent her from being nominated under the assumption that the President would not nominate someone who would be recused from the health care case. At worst, this may be evidence of rank careerism on her part, but that's hardly grounds for recusal.
JHA
Posted by: Jonathan H. Adler | January 29, 2012 at 12:15 PM
Jonathan, (3) is interesting. Suppose you were a DOJ lawyer tasked with making the privilege call. Whose/What interest would you be protecting? If revelation of the emails didn't harm the government's litigation position, is the public interest served by releasing them? Would it be legitimate for a DOJ lawyer to resolve close calls in the best interests of Justice Kagan? (Who is the client? What interests are being served?) And if this were an ordinary matter, would a trial court judge look at them in camera? In the end, though, I'm in agreement with you that the case for recusal hasn't been made out yet.
Posted by: John Steele | January 29, 2012 at 12:28 PM
Good questions. I think that under FOIA, the presumption should be for releasing information. I realize this is not how FOIA usually works in practice, but it is what I would prefer. In any event, don't think the DOJ lawyer should resolve close questions in the best interests of Justice Kagan, as she's not the person the relevant FOIA exemptions are intended to protect. If there's no harm to the government's litigating position, the docs should be released -- and if there is harm, can we still say Kagan was not an advisor or counselor?
I think it's also worth thinking about what her "best interests" are. Making it appear she was less involved than she was (even if her involvement would not require recusal)? Hiding information that might suggest the need to recuse? Hiding material that shows she walled herself off solely to ensure she could sit on the case as a justice?
An added twist here is that the Senate had sought this information when she was nominated and the Justice Department didn't turn over anything (but did, later on, when a FOIA was filed). Again, I don't think there's enough evidence to suggest Kagan must recuse, but there is enough to suggest the Justice Department has not been forthcoming.
JHA
Posted by: Jonathan H. Adler | January 30, 2012 at 12:37 PM
So far I am not convinced, but this is a lot stronger case for recusal than the case for recusal of Justice Thomas, which has nothing to do with his own activities but those of his wife.
Posted by: Richard W. Painter | February 03, 2012 at 08:10 PM