Almost as soon as Justice Kagan was nominated to the Supreme Court, conservatives unleashed a volley of lies claiming that she is required to recuse herself from the lawsuits challenging the Affordable Care Act. Although Kagan previously served as Obama’s solicitor general, she is only required to recuse herself from cases where she actively participated as a lawyer in that very same case — simply working in the same office as a lawyer who worked on the ACA litigation doesn’t cut it.
Nevertheless, former Minnesota Gov. Tim Pawlenty used Kagan’s recusal from a case she actually did work on as solicitor general as an opportunity to misrepresent her recusal obligations:
“I also am pleased that Justice Elena Kagen properly recused herself from participating in this ruling because of her previous position as President Obama’s Solicitor General, a precedent she must also follow when Obamacare is presented before the court,” said Pawlenty.
Pawlenty’s statement is not only false, it effectively accuses a sitting Supreme Court justice of perjury despite no evidence whatsoever justifying the claim. Kagan testified that she had no involvement whatsoever in the health care litigation during her confirmation hearing — a testimony she gave under oath. So the only way that Kagan could be required to recuse is if she knowingly lied to the Senate during her testimony. If Pawlenty actually has evidence that Justice Kagan committed such a felony, he should produce it. Otherwise, he would do well to avoid such slanderous accusations.
Sadly, Pawlenty is not the first high-profile conservative to toss around this spurious charge. Sen. Orrin Hatch (R-UT) previously made a similar accusation against Kagan, although he quickly walked back his claim after he came under fire for making such a serious allegation against a justice without any evidence to support the claim.