Last week, Sen. Jeff Sessions (R-AL) became the latest GOP lawmaker to fabricate a reason why he thinks Justice Elena Kagan must recuse from the Affordable Care Act litigation. On Friday, Senate Republicans escalated these frivolous assaults on Kagan’s ethical integrity even further — sending a letter signed by Sens. Mitch McConnell (KY), John Kyl (AZ), and Chuck Grassley (IA), the #1 and #2 Republicans in the Senate and the Senate GOP’s top lawmaker on the Judiciary Committee, to Attorney General Eric Holder laying out the exceptionally weak case for Kagan’s recusal:
Federal law requires recusal from a case if a judicial officer of the United States “has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case or controversy.” 28 U.S.C. § 455(b)(3). In addition, a federal judge must disqualify herself from participating in a matter if her “impartiality might reasonably be questioned.” Id. at § 455(a). It appears that former Solicitor General Kagan’s participation in the Obama Administration’s defense of the PPACA may satisfy both requirements for recusal.
Then-Solicitor General Kagan acknowledged to the Senate Judiciary Committee last year that, in fact, she played a “role” in the Obama Administration’s defense of the PPACA, including attending “at least one meeting” that discussed the litigation. But she minimized her degree of involvement in the litigation, characterizing it as not “substantial.” Federal law, however, requires recusal if a government official participated in a matter that is the subject of litigation; it does not require the government official’s past participation in that same matter to be “substantial” (as determined by the self-same government official).
Unsurprisingly, the letter from McConnell and his colleagues misrepresents Kagan’s actions. Although Kagan did testify at her confirmation hearing that she was once present in a meeting where the existence of the Affordable Care Act litigation was brought up, she also testified under oath that she did no work whatsoever as an attorney on this litigation. Being in a meeting where a particular lawsuit is mentioned does not constitute participation “as counsel, adviser or material witness” on a case any more than attending a football game makes you a coach.
Moreover, even though a far-right group filed a Freedom of Information Act request seeking evidence that Kagan must recuse from the Affordable Care Act litigation, this request proved so fruitless that even the National Review’s Carrie Severino — a former clerk to Justice Clarence Thomas — was forced to conclude that the documents uncovered by this request contain no evidence requiring Justice Kagan’s recusal.
Yet, while McConnell’s letter is clearly just the latest chapter in a witchhunt seeking to discredit Kagan, it is nonetheless significant simply because McConnell’s name is on it. Previously, only a few senators such as Sessions and Sen. Mike Lee (R-UT) — both of whom represent the Senate’s far right fringe — had jumped onboard the anti-Kagan witchhunt. The fact that McConnell, Kyl, and Grassley are now lighting up torches and demanding that Kagan be burnt at the stake indicates that this witchhunt is the official position of the Senate GOP caucus.