Opinion

Kagan should recuse from Obamacare case

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There has been much criticism lately that Supreme Court justices do not follow the ethics statutes and rules that govern other federal judges.

In particular, people focus on when Supreme Court justices should disqualify (or "recuse") themselves from a case. Chief Justice Roberts recently responded; he conceded that the Code of Conduct for Federal Judges does not apply to Supreme Court justices, but he assured us that the justices voluntarily follow this code, along with the federal statues, federal advisory opinions and court precedent.

He appeared to be reacting to calls for Justice Elena Kagan to disqualify herself in the ObamaCare health litigation because, as solicitor general, she seemed to be involved in preparing its constitutional defense.

Justice Kagan testified in her confirmation hearings that she would recuse herself from any case where she "officially formally approved something," or "served as counsel of record" or "played any substantial role."

Yet, the federal statute imposes a much stricter rule for all federal employees who become federal judges. It requires disqualification if Kagan (she was the former solicitor general) "participated" as an "adviser" on a matter, even if she did not give any formal advice. Did she participate in strategy sessions to defend ObamaCare?

In response to a Freedom of Information request, the Department of Justice refused to release certain emails, and the reason it gives indicates that Kagan was involved in strategy sessions concerning the constitutionality of ObamaCare.

The DOJ refused to turn over emails because, it says, they are "protected by the attorney work product doctrine." That doctrine, the DOJ affidavit explains, covers discussion by "OSG" (Office of Solicitor General) lawyers about "legal issues, arguments and strategy concerning anticipated" litigation over ObamaCare.

The DOJ is simultaneously claiming that it completely walled off Kagan from any strategy meetings concerning the ObamaCare litigation, while refusing to turn over emails to or from Kagan precisely because they involve strategy meetings concerning the litigation over ObamaCare.

For example, a chain of emails to or from Kagan during March of 2010, all have the subject line, "Health care litigation meeting." The DOJ refuses to disclose them because, it says, they discuss legal arguments for the "expected [health care] litigation."

However, if an airtight wall sealed Kagan from discussions on shaping defenses for ObamaCare litigation, why is she repeatedly receiving, sending or being copied on emails about shaping defenses for ObamaCare litigation? This wall must have more holes than a sponge.

The few emails that the DOJ did release raise even more issues. A week after the president announced her nomination, a DOJ press officer emailed the deputy solicitor general and asked him if Kagan was involved in the health care litigation.

In spite of these March 2010 meetings about shaping litigation strategy, he responded, a minute later: "No she never has been involved in any of it. I've run it for the office, and have never discussed the issues with her one bit." A few minutes later, he forwarded that email to Kagan.

One would think, if Kagan's deputy were correct, that Kagan would say, "of course," or, perhaps nothing. That is not what happened. Minutes later, Kagan wrote, "This needs to be coordinated. Tracy [the DOJ press officer], you should not say anything about this before talking to me."

What is there to "coordinate"? Why would Kagan suggest that they have to get their stories straight? Why "talk" instead of using emails? Is it because emails leave a paper trail?

If Justice Kagan would like advice on whether she must disqualify herself, she should do what other federal judges do: turn to the "Compendium of Selected Opinions". One section deals with "prior government employment."

The typical fact scenario involves a government employee (often a U.S. attorney) who becomes a judge. Several pages summarizing prior ethics opinions all say the same thing:

If the government employee was personally involved in a pending or impending matter, she must disqualify herself, even if the parties do not ask, and the parties cannot waive that disqualification.

If she was not personally involved, but the matter was in her office (under her responsibility), she must disqualify herself, but the parties can waive the disqualification.

Justice Kagan should follow her own Supreme Court precedent.

In Schneiderman v. United States (1943), Justice Jackson refused to participate because the case began in 1939, he became attorney general in 1940, and thus he "succeeded to official responsibility for it."

Therefore, he disqualified himself and wrote his opinion because "I desire the reason to be a matter of record." Was Chief Justice Roberts correct when he assured us that the Justices follow their own precedent on disqualification?

Ronald D. Rotunda is the Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence at Chapman University, and coauthor of the Treatise on Legal Ethics (published by the American Bar Association & West Publishing Co.)

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