.
A commentator this evening said word is ObamaCare will be at the Supremes in the middle of the 2012 elections. A RedState contributor recalls this
7/13/10 WSJ editorial about Justice Kagan's ethical
unsuitability to sit on ObamaCare decisions. It was written before she was finally approved.
7/13/10, "Kagan and ObamaCare," WSJ editorial
"
Elena Kagan breezed through her recent confirmation hearings, but there's some crucial unfinished business the Senate should insist on before voting on her nomination to the Supreme Court. To wit, she ought to recuse herself from participating as a Justice in the looming legal challenges to ObamaCare. In response to Senate queries, Ms. Kagan has said she'll recuse herself from participating in 11 cases on which she represented the government in her current job as Solicitor General. The challenge to ObamaCare isn't one of them, though the (ObamaCare) cases brought by Florida and 20 other states were filed in March, well before President Obama announced her nomination on May 10.
Ms. Kagan was never asked directly at her hearings about her role as SG regarding the health-care lawsuits. The closest anyone came was this question from Oklahoma Republican Tom Coburn: "Was there at any time—and I'm not asking what you expressed or anything else—was there at any time you were asked in your present position to express an opinion on the merits of the health-care bill?"
- Ms. Kagan: "There was not."
Regarding a potential recusal, that's not the right question. Ms. Kagan was unlikely to have been consulted on the merits of health-care policy, and even if she did express an opinion on policy this would not be grounds for recusal. The legal precedents on that are clear.
Recusal arises as a matter of judicial ethics if as a government official she expressed an opinion on the merits of the health-care litigation. This is what she would have to render a judgment on were she to be confirmed for the High Court. It is also the question on which she is likely to have participated
- given her role at the Justice Department.
The SG is the third ranking official at Justice, and its senior expert on Constitutional issues, so it's hard to believe she wouldn't have been asked at least in passing about a Constitutional challenge brought by so many states.
- The debate about the suit was well underway in the papers and on TV. The matter surely must have come up at Attorney General Eric Holder's senior staff meetings, which the SG typically attends.
We doubt Ms. Kagan would have stayed mum about the cases in internal Justice councils on grounds that Mr. Obama might later nominate her to the Court. At the time the Florida suit was filed on March 23, she was only one of several potential nominees whose names were being floated by the White House.
Under federal law (28 U.S.C., 455(b)(3)), judges who have served in government must recuse themselves when they have "participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the
- particular case in controversy."
Though their public chance has passed, Senators can still submit written questions to Ms. Kagan for the record. We hope someone asks her directly whether the legal challenges to ObamaCare ever arose in her presence at Justice, whether she was ever asked her views, and what she said or wrote about the cases.
We also think there are grounds for recusal based on her response during her Senate hearings on the substance of the state legal challenge. The Florida case boils down to whether Congress can compel individuals to buy health insurance under the Commerce Clause.
Ms. Kagan danced around the history of Commerce Clause jurisprudence, but in one response to Senator Coburn she did betray
- a bias for a very expansive reading of Congress's power.
The Commerce Clause has "been interpreted to apply to regulation of any instruments or instrumentalities or channels of commerce," she said, "but it's also been applied to anything that would substantially affect interstate commerce." Anything? This is the core question in the Florida case. If she already believes that the Commerce Clause justifies anything that substantially affects interstate commerce,
- then she has all but prejudged the individual mandate question.
A federal judge is required by law to recuse himself "in any proceeding in which his impartiality might reasonably be questioned." This has been interpreted to mean that the mere public expression of a legal opinion isn't disqualifying.
- But this is no routine case.
Ms. Kagan would sit as Mr. Obama's nominee on the nation's highest Court on a case of momentous Constitutional importance. If there is any chance that the public will perceive her to have prejudged the case, or rubber-stamped the views of the President who appointed her, she will damage her own credibility as a Justice
- and that of the entire Court."...
