Washington Times

By Stephen Dinan

The Supreme Court’s announcement Monday that it will hear challenges to President Obama’s health care law put a spotlight on Justice Elena Kagan, who worked in the administration while the law was being written and, conservatives argue, helped craft its legal defense.

“Before the Supreme Court case is heard, we need to know if Justice Elena Kagan helped the Obama administration prepare its defense for Obamacare when she was solicitor general. The Justice Department must answer serious questions about whether Justice Kagan has an inherent conflict of interest, which would demand that she recuse herself from the Obamacare case,” said Rep. John Fleming, Louisiana Republican.

At the same time, liberal groups and Democrats in Congress have been pushing for months for Justice Clarence Thomas to recuse himself, citing his wife’s stated opposition to the law as an indication that he cannot rule impartially.

At stake in the case is the fate of the president’s massive health care overhaul, which passed Congress on the strength of Democratic votes last year and has a checkered record in lower courts.

The case likely will be argued next spring. Although the justices could recuse themselves at any time, legal analysts doubt it will happen.

James Sample, a law professor at Hofstra University School of Law who studies recusal issues, said the outside groups’ calls are misplaced.

“I am generally one of the most pro-recusal scholars you can find, and yet I think in this instance those who are trying to argue for the recusal of Justice Kagan and Justice Thomas alike are opportunists who are trying to use a mechanism that just doesn’t fit,” he said.

The standard for recusal is whether a judge’s or justice’s impartiality can be reasonably questioned.

Mr. Sample said Justice Thomas‘ judicial approach is well-known and it’s unlikely that his wife’s associations would influence him in this case. As for Justice Kagan, he said her “extraordinarily limited exposure to the health care policy when she was in government service is, I think, just a nonissue.”

Justice Kagan was solicitor general at the time the health care legislation was signed in March 2010, and when states sued to block it.

During her confirmation process last year, Republican senators asked Justice Kagan whether she would recuse herself. She replied that she had no role in crafting the government’s response to the lawsuits.

She said she attended a meeting where the cases were discussed, but that she wasn’t involved in the government’s filings.

Outside groups have obtained documents that they say show Justice Kagan was enthusiastic about the law’s enactment during her time as solicitor general. The Judicial Crisis Network, a conservative group, argues in a white paper that the Justice Department is withholding other documents under the deliberation exemption to the Freedom of Information Act - which the Judicial Crisis Network said signals that she was involved in those deliberations.

House Republicans on the Judiciary Committee tried to obtain additional documents, but a committee aide said the Justice Department on Friday declined to turn them over.

Hans A. von Spakovsky, a senior legal fellow at the Heritage Foundation, a conservative group, said the incentive for Justice Kagan to stay on the case may be great.

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