During Justice Kagan’s confirmation hearings, conservatives falsely claimed that she was required to recuse herself from the pending health care litigation because of her previous role in the Department of Justice. Earlier this week, Sen. Orrin Hatch (R-UT) attempted to revive this absurd claim:
I would think that Kagan, who was the Solicitor General at the time [the Affordable Care Act] was all done, probably should recuse herself. … I personally think that she should recuse herself because I’m sure that she participated in discussions at the White House [about the health care litigation].
As the Wonk Room explained the last time opponents of health reform tried to pressure Kagan into an unwarranted recusal, Kagan is under no obligation whatsoever to recuse:
[J]udges 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.
Indeed, Kagan confirmed that she had no involvement whatsoever in the health care litigation during her confirmation testimony — a testimony she gave under oath. So when Hatch says the he is “sure she participated” in the White House’s discussion of the health care litigation, he is not just revealing that he doesn’t know what the Solicitor General’s actual job is — he is also accusing a sitting Supreme Court Justice of committing perjury without any evidence to that effect. If Hatch actually has evidence that Justice Kagan is a felon, then he should produce it. Otherwise he would do well to avoid such slanderous accusations.
Ironically, while there is absolutely no reason for Kagan to recuse, there is a recusal issue with one of the Court’s conservativs. After progressive Judge Stephen Reinhardt was assigned to the appellate panel hearing a challenge to anti-gay Proposition 8, supporters of the anti-gay law called for Reinhardt to recuse because his wife’s organization advocates against Prop 8. But, of course Supreme Court spouse Ginni Thomas used to lead a Tea Party group called Liberty Central which vigorously opposes the Affordable Care Act. So by the right’s very same arguments, Justice Thomas must drop out of the health care litigation.
Hatch is now walking back from his implicit suggestion that Justice Kagan committed perjury:
On Thursday, Hatch was more circumspect in what Kagan should do. The Utah Republican told The Salt Lake Tribune he was just raising the issue of whether Kagan should consider taking herself out of any health care reform appeal but that she has sole authority to do so.
“I don’t have direct knowledge of what she did or did not do,” with regard to working on health care, Hatch said. “I raise it as an issue that certainly has to be considered.”