Supreme Court: Kagan May Decide ObamaCare Despite Admin Role

National   |   Steven Ertelt   |   Nov 9, 2010   |   12:34PM   |   Washington, DC

Supreme Court Justice Elena Kagan, the second abortion advocate President Barack Obama placed on the high court, appears likely to decide the fate of ObamaCare despite her role in the Obama administration.

Though Kagan has been called upon to recuse herself in what is expected to eventually be one of the more monumental decisions of the Supreme Court, she participated in a case on Monday that is a precursor to the coming battle.

Although it is not considered one of the three main lawsuits coming from the states and state attorneys general challenging ObamaCare, which funds abortions, Kagan joined other members of the Supreme Court in denying a hearing to another case.

Former California state lawmaker Steve Baldwin, aided by the pro-life Pacific Justice Institute, a legal group, filed suit against ObamaCare and asked the Supreme Court for an immediate hearing — bypassing the lower federal district and appeals courts. The legal team argued the constitutional problems with ObamaCare are so monumental that the Supreme Court must consider the case immediately.

The high court denied reviewing the case but its decision is noteworthy because Kagan’s apparent participation in it is an indication she will likely participate in the coming battles over the lawsuits expected to have a greater chance of delivering the knockout blow to ObamaCare and its lack of provisions stopping abortion funding.

Despite her prominent role in the Obama Administration as a legal advisor and Solicitor General, the attorney who argues for the administration at the Supreme Court, Kagan denied she played any role in fashioning the ObamaCare legislation or assisting Obama or his officials on it. Asked if she would recuse herself, Kagan told the Senate she would be “carefully considering any arguments made for recusal and consulting with my colleagues and, if appropriate, with experts on judicial ethics.”

In July, the Wall Street Journal said “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.

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.”

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  said in July. “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 saying Kagan should recuse herself.

“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 said in July.

“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 said. “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.