RightChange: Should Kagan Recuse Herself From Judging Obamacare Suit?

As Obamacare heads to the Supreme Court, the fact that Justice Elena Kagan was Obama's solicitor general and was responsible for defending his administration’s positions in court disputes should have been enough for her to recuse herself from the trial.  Recent developments have shown that a new batch of emails from her could be the ultimate form of a conflict of interest.

A string of emails proves Kagan cheered the passage of Obamacare ten days after the House voted on it on March 21, 2010.  Read the exchanges below, courtesy of CNS News:

These emails are an exchange between Kagan and Harvard Law Professor Laurence Tribe who was serving DOJ at the time:

“The subject line on Tribe’s email reads: “fingers and toes crossed today!”—an apparent reference to the unusual Sunday vote on the health-care bill that would occur later that day in the House. In the email, Tribe reminded Kagan of a dinner meeting they had to postpone and suggested they reschedule it.

“I hear they have the votes, Larry!! Simply amazing,” Kagan said to Tribe in one of the emails.”

Kagan also wrote emails to her top deputy Neal Katyal about possible litigation challenging the healthcare law.  These emails were written the same day Obamacare was passing the House:

The subject line on Perrelli’s 6:11 p.m. email was: “Health care litigation meeting.”

“It sounds like we can meet with some of the health care policy team tomorrow at 4 to help us prepare for litigation,” Perelli wrote in this email. “It has to be over there. Can folks send me the waves info (full name, SSN, DOB) of everyone that should attend as soon as possible? WH wants it tonight, if possible. I know we won’t get everyone’s in tonight.

“Also,” Perrelli continued, “we need to think about the key issues/question for the agenda. [Language redacted] tops my list, but I know there are others.”

At 6:18, Katyal forwarded this email to Kagan. “This is the first I’ve heard of this,” Katyal told Kagan. “I think you should go, no? I will, regardless, but feel like this is litigation of singular importance.”

One minute later—at 6:19 p.m.—Kagan responded to Katyal: “What’s your phone number?”

Three minutes after that, Katyal sent Kagan his phone number and the email chain ended.”

According to 28 USC 455, a Supreme Court Justice must remove herself from a case if “any proceeding in which his impartiality might reasonable be questioned” anytime he has “expressed an opinion concerning the merits of the particular case in controversy” while he “served in governmental employment.”

Since Kagan has expressed her partial opinion by saying “I hear they have the votes, simply amazing!!!” about one of the most controversial pieces of legislation in decades while she served as a government employee, we the people recommend she excuse herself from the trial.

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