Case For Kagan Recusal From Health Care Reform Case Is Weak

Conservative have been trying to make the case for Supreme Court justice Elena Kagan to recuse herself from the upcoming case about the Affordable Care Act, but the evidence does not support the charge.

During the nomination process, Kagan told the Senate that she was not asked her opinion on the legal and constitutional issues surrounding the legislation by the Obama administration. She also explained that “I did not participate” or “played any substantial role” in the court cases where the health care law was opposed.

When she was US Solicitor General, Kagan never offered any opinion on the merits of the health care law in emails released by the Justice Department, keeping her position on the issue consistent.

Recently conservatives have claimed that an e-mail from Kagan to Justice Department adviser Laurence Tribe saying that it was “simply amazing” that congress had the votes for health care passage is evidence that she should recuse herself.

Experts on legal ethics don’t see a compelling argument that Kagan needs to recuse herself. Writing on the Legal Ethics Forum blog, Hofstra University professor Monroe Freedman wrote, “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.”

Legal ethics expert John Steele agreed with Monroe, saying, “It would be a shame if judicial ethics became infected by ordinary partisan politics — whether from the right or the left.”

NYU law professor Stephen Gillers said, “The fact of passage is simply amazing after so many decades of effort to address this social problem. Acknowledging the truth of that fact says nothing about partiality.”