Kagan May Not Recuse Herself From Case on Pro-Abortion Health Care

National   |   Steven Ertelt   |   Jul 13, 2010   |   9:00AM   |   WASHINGTON, DC

Kagan May Not Recuse Herself From Case on Pro-Abortion Health Care

by Steven Ertelt
LifeNews.com Editor
July 13
, 2010

Washington, DC (LifeNews.com) — Supreme Court nominee Elena Kagan says she will recuse herself from a handful of potential cases that could come before the high court with her on it if the Senate confirms her. However, she has not said she would step down from considering the lawsuit on the pro-abortion health care law President Obama signed.

That’s despite the fact she spent countless hours working with Obama and congressional allies to secure passage of the measure.

In a new editorial today, the Wall St. Journal says senators should press Kagan to promise not to participate in hearing the lawsuit against the law and its massive abortion funding if she is approved for the Supreme Court.

The WSJ editorial says "there’s some crucial unfinished business the Senate should insist on before voting on her nomination to the Supreme Court" saying "she ought to recuse herself from participating as a Justice in the looming legal challenges to ObamaCare."

"In response to Senate queries, Ms. Kagan has said she’ll recuse herself from participating in 11 cases on which she represented the government in her current job as Solicitor General. The challenge to ObamaCare isn’t one of them, though the cases brought by Florida and 20 other states were filed in March, well before President Obama announced her nomination on May 10," the newspaper noted.

"Recusal arises as a matter of judicial ethics if as a government official she expressed an opinion on the merits of the health-care litigation. This is what she would have to render a judgment on were she to be confirmed for the High Court. It is also the question on which she is likely to have participated given her role at the Justice Department," the Journal continued.

Kagan was not asked during the hearings about her potential participation in deciding the health care case.

But the Journal says it is very likely that Obama and senior administration officials talked with her about the lawsuit, which was ramping up before her nomination was announced.

Under federal law (28 U.S.C., 455(b)(3)), judges who have served in government must recuse themselves when they have "participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy."

"Though their public chance has passed, Senators can still submit written questions to Ms. Kagan for the record. We hope someone asks her directly whether the legal challenges to ObamaCare ever arose in her presence at Justice, whether she was ever asked her views, and what she said or wrote about the cases," the Journal editorial says.

A federal judge is required by law to recuse himself "in any proceeding in which his impartiality might reasonably be questioned."

"This has been interpreted to mean that the mere public expression of a legal opinion isn’t disqualifying. But this is no routine case," the Journal adds. "Kagan should not undermine public confidence in her fair-mindedness by sitting in judgment on such a controversial case that began when she was a senior government legal official."

The Judicial Crisis Network followed up the Journal editorial with its own letter to senators this morning asking for recusal, according to National Review.

"If she is confirmed as an Associate Justice of the Supreme Court, Solicitor
General Elena Kagan must recuse herself from taking any part in the Court’s
consideration of [the health care lawsuit]," the letter says, adding, "it is highly likely that Kagan played an official role in the administration’s response to the lawsuit."

"It is exceedingly likely that, when the States’ challenge to the new health
law was filed in March, 2010, Kagan participated as counsel or advisor to
the Administration on the matter, or at least expressed her opinion on the
case’s merits at that time," JCN says, agreeing with the WSJ. "This is the case because it is standard DOJ practice to discuss and exchange opinions about key pending legislation as a routine part of various daily and weekly senior staff meetings."

"Any participation by Kagan in Administration discussions … clearly would require her disqualification from any consideration of the case by the Supreme Court," the letter continued.

"This point should be clarified by Senators before voting on her nomination. It is a key aspect of the Senate’s advice and consent function both to reach appropriate conclusions as to the facts and to act in a manner that ensures the impartiality (in substance and appearance) in our system of justice," it concluded.


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