Should Elena Kagan Recuse Herself From the Obamacare Case? Of Course Not.

The law, lawyers, and the court.
Nov. 16 2011 7:00 PM

Musing About Recusing

Why calls for Elena Kagan to recuse herself from the Obamacare case are ridiculous.

Antonin Scalia
Supreme Court Justice Antonin Scalia

Photograph by Chip Somodevilla.

In the epic battle to manufacture false equivalence, score another point for critics of Justice Elena Kagan, who is now being called upon to recuse herself from next spring’s landmark Supreme Court case about the Affordable Care Act because she had (gasping, clutching heart) … a job. In a searing indictment of her deep bias on the issue of the Commerce Clause and the regulation of “inactivity,” the conservative lobby group Judicial Watch has produced eyeball-popping evidence that then-Solicitor General Kagan was in favor of the law when it was passed in 2010. And Carrie Severino, a former clerk of Clarence Thomas and chief counsel of another conservative watchdog group, the Judicial Crisis Network, called upon Kagan to recuse herself from court deliberations over the law because Kagan called meetings and sent e-mails and did other stuff that was her job—all in anticipation of lawsuits over the law.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

Oh wait, one more thing. The Drudge Report blared Tuesday (with a baffling green photo of Kagan and Obama apparently taken with the aid of night-vision goggles): “Kagan Cheered Obamacare Passage” and broke the news that Kagan sent an e-mail to then-Justice Department adviser Laurence Tribe on the day the House passed the bill, saying: "I hear they have the votes, Larry!! Simply amazing." Fox News tried to double down on the pretend outrage over Kagan’s astonishment that a law had passed, but even they couldn’t find an ethics expert who agreed, nor could practically anyone else. The rationale for the call for recusal seems to be that Kagan, who did everything in her power to avoid creating a conflict of interest by delegating everything possible to her deputy Neal Katyal, has somehow shown a conflict of interest.

The fallback argument is that her enthusiasm for the legislation somehow represents an “opinion regarding the underlying legal or constitutional issues related to the health care legislation.” Which is a bit like saying that my enthusiasm for wheat toast reflects a constitutional view on Wickard v. Filburn. Take that, plus a healthy dollop of “we haven’t found anything but we’re still sure it’s there,” and you have the full measure of the new crop of biting recusal claims against her.

Not that the Supreme Court justices are bound by this, but let’s look once again at the standard described in the Judicial Code of Conduct—the rules that bar a sitting federal judge from conduct that gives the appearance of impropriety. Now “appearance of impropriety” is a very, very low standard (although it’s not so low that merely imagining impropriety would suffice). The appearance-based standard means that federal judges should not do anything to suggest to the public that they are in the tank for one side or another. But the ethics rules don’t contemplate that having worked for the Obama administration constitutes a conflict. Many justices have worked for many presidents and on many cases. To be sure, Kagan would have to step aside if she had, while in government service, worked on strategies and tactics on health care. (That is precisely why she recused herself in so many cases on other issues, which amounted to more than one-quarter of the cases heard, last term.) In cases in which she was actively involved in setting policy and strategy Kagan stepped aside. In cases in which she went out of her way to be uninvolved, she hasn’t. But the suggestion here seems to be that Kagan is compromised not for the work she did, but for the office she held—and that is a standard that does not exist in the ethics rules.

If anything, the fact that then-Solicitor General Kagan went out of her way not to participate in the meetings and strategy sessions surrounding the health care litigation suggests that she fully understands that appearance of improper conduct in fact counts for as much as actual misconduct. She was at pains to distance herself from this case because it would have looked bad. For which her critics now seek to, er, make her look bad. The criticisms of Kagan aren’t about the appearance of bias or impropriety, because Kagan has been pretty much obsessive about preserving appearances. And what about those who believe that her caution as solicitor was all part of an elaborate plan to get her on the court so she could vote to uphold the law? This is also irrelevant. The ethics rules don’t exist to comfort the severely paranoid. There’s medication for that.

Measure Kagan’s abundance of caution for appearances against the new outcry against Justices Clarence Thomas and Antonin Scalia, both of whom attended a fundraiser for the Federalist Society last Thursday, just hours after wrapping up a conference on the ACA litigation. As the Los Angeles Times observed, if the Judicial Code of Conduct actually applied to the nine justices on the Supreme Court, the two guests of honor might have been in violation of the provision that says, A judge may attend fund-raising events of law-related and other organizations although the judge may not be a speaker, a guest of honor, or featured on the program of such an event.”

I will say once again that I don’t think this one dinner means Scalia and Thomas should be bounced off the ACA case, or that the justices should hide in court broom closets and avoid public appearances. But their utter disregard for the fact that the ethics rules would prohibit such activity is worrisome. Not for them, or the future of the ACA. But for the court and the growing public sense that it’s comprised of two opposing teams and a funny little utility outfielder named Kennedy.

The outcry over Thomas and Scalia and their attendance at events sponsored or supported by the Koch brothers or partisan political groups is simply not comparable to the claims that Kagan is in looooove with Obamacare. Kagan is being criticized for doing her job before she became a justice. Scalia and Thomas are being faulted for participating in extracurricular activities while they are sitting on the court.

One of the reasons the two sides are talking past one another—yet again—is that there is no agreement on what even looks like bias, much less what is bias. But how’s this for a stab at differentiating: The appearance of doing one’s job as a lawyer before being elevated to the bench is in no way comparable to the appearance of aligning yourself with a partisan legal or political cause once on the bench. One bespeaks, at worst, the existence of a work ethic. The other bespeaks a taste for picking unnecessary fights.

My friend Lincoln Caplan made this point when he tried to explain why attendance at the Federalist Society event matters, even when it doesn’t matter: “It does not matter whether the group is conservative, liberal or otherwise. Justices, just like federal judges, are public servants, and should preserve the appearance of impartiality to enhance the public’s confidence in the legal system.” The ethics rules don’t exist to protect federal judges and their rights to party like it’s 1984. They exist to protect the integrity of the judiciary and the public confidence in the idea of a fair hearing. Nobody doubts that the nine sitting justices each believe themselves to be too super-excellent to be biased. But nobody knows or cares whether they think they’re biased. And the court as a whole is in trouble when the justices are making news for their partisan activities and none of them seems to be upset about it.

To my friends who hate Kagan, I can offer you little comfort. You will no doubt look and look until you find something, and if you don’t, you’ll start mumbling stuff about grassy knolls. But if you are going to fault Kagan for being hyper-aware of judicial appearances, at least be evenhanded and fault Scalia and Thomas for being hyper-reckless about them.

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