Without question, the upcoming Supreme Court battle over President Barack Obama’s signature Patient Protection and Affordable Care Act (PPACA) — often referred to as “Obamacare” — is shaping up to be the most important constitutional fight of our lifetimes.
Early last week, the nation’s high court announced it will hear arguments in the case during the 2012 Spring Term — likely in March or April — with a decision expected in June. But a thorny question facing the court even before it hears and deliberates the merits of the case is whether Justice Elena Kagan will recuse herself.
Kagan, who was nominated by Obama last year and confirmed by the U.S. Senate, has come under fire from conservative groups and some Republicans in Congress who question whether she could serve as an impartial jurist on the matter. The issue is a legitimate one — unlike recent calls for Justice Clarence Thomas to recuse himself simply because his wife has taken a public stance against Obamacare — and one that takes on added importance considering that the nine justices will likely be closely divided on the decision.
Last week, The Daily Caller reported that the watchdog organization Judicial Watch had obtained e-mails showing that Kagan, while she was serving as Obama’s solicitor general at the Department of Justice, was a cheerleader for the proposed legislation as it was winding its way through Congress. In one e-mail exchange, a giddy Kagan wrote to her colleague Laurence Tribe, “I hear they have the votes, Larry!! Simply amazing.” Other e-mails show Kagan may even have been involved in crafting the Obama administration’s legal defense of Obamacare.
Kagan’s prior involvement in a number of issues that have been before the court has, according to a report last October in The Washington Post, forced her to sit out nearly half of the cases heard during her first term on the bench. It remains to be seen whether she will take a similarly prudent and appropriate position on as important and controversial a case as the constitutionality of Obamacare and recuse herself because of the appearance of partiality. Unfortunately, early signs are that Kagan will not sit this one out.
The black-letter law on federal judges recusing themselves is clear. Any judge or justice is required to “disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” The law also makes clear that recusal is necessary whenever the justice or judge has “personal bias or prejudice concerning a party.”
Once it became clear she was on Obama’s shortlist to fill a vacancy on the Supreme Court, Kagan was careful to keep the e-mail trail clear of any specifics regarding the legal response to the law. Judicial Watch’s summary of the e-mails points out, however, that Kagan was “present at ‘at least one’ meeting in which the challenges to PPACA were discussed.”
With regard to which side of the constitutional debate over provisions in the health care legislation Kagan would line up on, the answer is obvious: She would be with the administration. Her favorable view of the legislation was clear, notwithstanding her carefully crafted effort to duck the issue when questioned by Sen. Tom Coburn (R-OK) during her confirmation hearings.
Looking at law and the e-mails that have been recently brought to light, it is clear Kagan should recuse herself from this case. If she refuses to do so — as most observers believe she will — the indelible stain of partiality will attach to the Supreme Court’s vitally important credibility.
Bob Barr represented Georgia’s Seventh District in the U.S. House of Representatives from 1995 to 2003. He provides regular commentary to Daily Caller readers.