Last week, Slate published an article by professor Eric Segall titled “A Liberal’s Lament on Kagan and Health Care.” The premise of this piece is that Segall is a self-described “liberal constitutional law professor” who believes Obama-appointed Supreme Court Justice Elena Kagan must recuse herself from the lawsuit challenging the Affordable Care Act. It became the darling of conservative legal bloggers almost immediately after it was published, but it also misrepresents the law governing judiciary recusals and proposes a dangerous new legal rule that would enable both political parties to toy with the independence of the judiciary.
As Segall correctly notes, judges or justices must recuse themselves from any case in which they participated as a “counsel, adviser, or material witness” while they were a government attorney. Yet Justice Kagan testified under oath at her confirmation hearing that she never laid one legal hand on the health care lawsuits while she served as solicitor general, and her testimony is corroborated by documents obtained by a conservative group seeking evidence requiring her recusal through the Freedom of Information Act. Segall presents no evidence suggesting that Kagan perjured herself at her confirmation hearing, instead claiming that the “lack of certainty” about whether or not Kagan was telling the truth nevertheless “points to recusal.”
It is true that few people other than Justice Kagan are certain whether she walked into a Senate hearing one day, swore an oath to tell nothing but the truth, then committed a federal felony by lying about her role in the health care litigation. It is also true that no one can be truly certain that Justice Scalia didn’t secretly engineer the Kennedy assassination. So far, there is exactly the same amount of evidence supporting both claims.
The most distressing part of Segall’s attack on Kagan, however, is his suggestion that a judge’s recusal obligations ebb and flow with the national significance of a particular case, and with the amount of political pressure placed upon them by the president’s opposition party. His article hinges on the perfect storm that is represented by a major constitutional issue with passionate opponents seeking recusal from a justice who recently served in a presidential administration. In Segall’s words, “[t]he problem is not that she is reviewing a law passed by the president who appointed her and for whom she worked. The problem is that this specific law is the focal point of the Republican opposition to his re-election campaign, which will take place just a few months after the decision is expected.”
If the Constitution is clear about one thing, it is that judges must be independent of the political process. This is why federal judges are not elected. It is why they serve lifetime appointments, why their salaries can never be diminished, and why they cannot be removed except through the extraordinary and extraordinarily difficult process of impeachment. Segall, however, would strip Justice Kagan of her power to decide an important constitutional case, in large part because of the political pressure being applied to her and her fellow justices. Whatever Kagan’s ethical obligations may be, they must not change because of the political whims of the Republican Party.
Moreover, there is no evidence that Kagan takes her recusal obligations any less seriously in politically controversial cases. Just today, in fact, the court announced that Kagan has recused herself from the Obama administration’s lawsuit challenging Arizona’s draconian immigration law. Next to the health care litigation, no court case imposes more political baggage on President Obama than the lawsuits attacking conservative state immigration laws, and yet Kagan acted exactly as she should have—evaluating her own ethical duties under the law independent of whether her decision has political implications.
Lest there be any doubt, this standard cuts both ways. Last February, 74 Democratic members of Congress wrote conservative Justice Thomas noting that, among other things, his wife Ginni advertised herself as a lobbyist who "appeals to clients who want a particular decision—they want to overturn health care reform.” It is true that federal law requires judges to recuse from any case that could “substantially affect” their spouse’s finances, so if Ginni Thomas is currently receiving substantial lobbying fees to try to repeal the Affordable Care Act, Clarence Thomas needs to remove himself from this case. To date, however, no evidence has emerged that Ginni is actually earning such fees, and her husband does not magically acquire new recusal obligations simply because the Democratic Party really, really wants the Affordable Care Act to be upheld.
If anything emerges from this unfortunate lawsuit challenging a clearly constitutional law, it should be an unambiguous statement from all nine justices that their interpretations of the law will not change simply because a political movement runs an effective PR campaign—and that this statement applies regardless of whether they are evaluating their own recusal obligations or interpreting the United States Constitution itself.
In the words of Judge Laurence Silberman, a legendary conservative judge who once received the Presidential Medal of Freedom from George W. Bush, the legal case against health reform has no basis “in either the text of the Constitution or Supreme Court precedent.” Indeed, shortly after these lawsuits were filed, Ronald Reagan’s former Solicitor General Charles Fried promised to “eat a hat which I bought in Australia last month made of kangaroo skin” if the justices end up striking down the law.
The only thing that has changed since Fried promised that kangaroo skin feast is that the Affordable Care Act’s opponents blanketed the nation’s airwaves and op-ed pages with spurious claims that the Constitution does not mean what it actually says. If they succeed in heckling this law out of existence—or in heckling Justice Kagan into an unwarranted recusal—it will be a clear sign that the words of the law mean nothing in the face of a determined disinformation campaign.
Update, 10:30 p.m., Dec. 12: A response from Eric Segall:
In his response to my editorial, Mr. Millhiser talks a lot about whether Justice Kagan committed perjury when she testified during her confirmation hearing that “that she never laid one legal hand on the health care lawsuits.” I want to make clear that I never suggested she committed perjury and never even mentioned the topic. The “perfect storm” of factors that I listed as pointing toward recusal did not include whether she “laid one legal hand” on the ACA while she was Solicitor General. I stand by the list of factors in my piece that constituted the “perfect storm” and the judgment that they point toward recusal. He also claims that I “misrepresent[ed] the law governing judiciary recusals.” I cited the recusal laws accurately and said that “there are legitimate arguments that these rules point to recusal.” I stand by that claim as well in light of the publicly available e-mail between Justice Kagan and Professor Tribe in combination with the rest of the facts set forth in my editorial.