Severino can't let go of argument that Kagan must recuse herself in health care case

Blog ››› ››› ADAM SHAH

Last week, conservatives got very excited by a Wall Street Journal editorial speculating that Elena Kagan must have given an opinion on litigation Florida and other states filed challenging the constitutionality of the health care reform legislation. Conservative activist and National Review Online blogger Carrie Severino co-wrote a letter demanding that senators "clarif[y]" whether Kagan had participated in the case. And all seven of the Judiciary Committee Republicans signed a letter asking her a series of questions about whether she had given any advice about the constitutionality of the health care bill or strategies for defending that bill in court.

In response to the Judiciary Committee Republicans, Kagan said that she did not comment on the constitutionality of the health care reform legislation or the litigation challenging that legislation.

That should end matters. But not for Severino. She has written an NRO blog post basically accusing Kagan of lying. Severino complained about the "utter implausibility of the idea that she never discussed of any issues surrounding health care" and spins a conspiracy theory that "Kagan, the White House, and Senator Leahy are not taking this process seriously, and instead are cooperating to push her vote through as quickly as possible."

Of course, Kagan didn't say she has never discussed "any issues surrounding health care." Regarding what Kagan actually said, it's not Kagan's job to comment on the constitutionality of a statute pending before Congress. That's the job of the Justice Department's Office of Legal Counsel and the attorney general (who, on very rare occasion, might ask others for an opinion if he or she disagrees with the Office of Legal Counsel's findings -- something that apparently didn't happen in this case).

Furthermore, as Severino acknowledges, Kagan said she stopped attending the attorney general's morning meetings "some time in early-to-mid-April." Kagan also wrote that she scaled back her participation "in more general departmental matters (which were not extensive to begin with)" soon after March 5, the date on which she was informed that the president was considering her for a possible Supreme Court nomination.

President Obama signed the health care bill on March 23 and the lawsuit challenging that law was filed the same day. That means that within a couple of weeks of the health care legislation becoming law and the filing of the case challenging the health care litigation, Kagan stopped attending the very meetings that the Journal identified as ones in which she must have spoken on the issue.

Rather than proof of any nefarious conspiracy theories, Kagan's responses have settled the recusal issue for everyone but the diehards.

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