The constitutional case against health reform is exceptionally weak — even ultraconservatives like Chief Justice Roberts and Justice Scalia reject a narrow vision of the Constitution which would hold this law unconstitutional. So with the cards already laid out against them, the right has decided it needs to stack the deck by eliminating justices who are likely to uphold the law. Today’s Wall Street Journal editorial falsely claiming that Supreme Court nominee Elena Kagan must recuse herself from health care litigation just their first cut at this deck stacking:
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.
Simply put, the WSJ is not telling the truth about when a judge must recuse themselves. Later in the editorial, the WSJ quotes the federal law governing recusals by judges who are former government officials — judges must recuse themselves from cases where they “participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy” — but this language does not say what the WSJ wants it to say.
To have “participated” in a “particular case in controversy,” a judge must have been a lawyer, adviser or witness in the exact same lawsuit that is now before their court. Because none of the health care cases currently pending in federal court have been appealed, Kagan would not have done any work on those specific cases. Normally, the Solicitor General first becomes involved in federal litigation at the appellate level, if at all.
Contrary to the WSJ‘s claim, a judge is not required to recuse themselves simply because they have previously expressed an opinion on a legal issue that is now before them in a new case, even if they expressed that opinion while giving advice to a client. Were judges forbidden from deciding issues that they have already expressed opinions on, Justices Scalia and Thomas would be required to recuse themselves from all abortion cases, since they have both previously expressed the opinion that Roe v. Wade should be overruled.
There is also ample precedent indicating that Kagan does not need to recuse herself from health care litigation. The last Solicitor General to be elevated to the Supreme Court was Justice Thurgood Marshall. Of the 53 cases Justice Marshall recused himself from due to his work as SG, 48 were cases that he had previously signed a brief in, and the other five were all cases where he either authorized an appeal or otherwise was involved in that exact same case. Justice Marshall did not recuse himself from a single case that he had not previously done work on, and he certainly didn’t recuse himself from all school desegregation cases, even though he had done significant previous litigation in that area.
Likewise, Justice Hugo Black actually wrote the Fair Labor Standards Act while he was a senator, but Justice Black repeatedly heard cases interpreting this law while he served as a justice.
So the WSJ is simply making things up when it claims that Kagan is required to recuse herself from health care litigation. Just like the frivilous lawsuits claiming that health reform is unconstitutional, the WSJ claims that it can make up the law as it goes.