WSJ attacks Kagan for totally appropriate decision to scale back participation in DOJ work

Blog ››› ››› ADAM SHAH

After its previous suggestion that Elena Kagan must recuse herself from participating in health care reform-related litigation fizzled away, The Wall Street Journal is attempting a new line of attack -- speculating that Kagan sensed or was informed of her potential as a Supreme Court nominee and thus engaged in a "deliberate act of avoidance to hear and say nothing" about the health care litigation so that she wouldn't have to recuse herself should she become a Justice. In fact, Kagan herself stated that, after being informed that the president was considering nominating her to the Supreme Court, she "scaled down" her participation in Justice Department work outside her specific duties as solicitor general. And her decision was completely appropriate.

After recounting Kagan's statement that she was not involved in the health care reform litigation and had not given an opinion on the constitutionality of the reform legislation, the Journal argues:

We have no reason not to take Ms. Kagan at her word. Enough people work in Justice who would know if she were not telling the truth, and it would be severely damaging to her credibility on the High Court if such a claim later surfaced. We doubt Ms. Kagan would take such a risk.

Yet it is also worth noting how extraordinary it is that she would have played no role at Justice even in discussing the cases. As SG, she is the Administration's foremost authority on the Constitution. The Florida lawsuit was filed on March 23, six weeks before she was nominated on May 10. The op-ed pages and cable channels were full of debate about the Florida and Virginia lawsuits and their merits.

It must have taken a deliberate act of avoidance to hear and say nothing about this potentially landmark legal challenge on such a momentous issue. Our guess is that either someone advised her to avoid the subject, perhaps someone at the White House who knew she was a potential nominee. Or perhaps Ms. Kagan herself, with what we have learned are her finely cultivated political instincts, decided she should all but recuse herself from the case while at the Justice Department lest she later have to recuse herself while on the Court.

But there's no reason for the Journal to be speculating about why Kagan did not participate in the litigation challenging health care reform. Kagan herself stated outright that soon after she was informed in early March of the fact that President Obama was considering her nomination, Kagan stated that she "scaled down my participation in more general departmental matters (which was not extensive to begin with)."

And it would have been irresponsible for Kagan to have done otherwise, since she would have expanded the number of cases in which she would have to recuse herself and risk the possibility that the Supreme Court would tie 4-4 on important issues.

In response to a question on her role in the health care reform litigation, Kagan stated:

I ceased performing the litigation responsibilities of the Solicitor General position on or just after May 10, 2010, the date of my nomination to be Associate Justice of the Supreme Court. I informed the Supreme Court on May 17, 2010 that Neal Katyal, the Principal Deputy Solicitor General, would serve as Acting Solicitor General in all filings from the date of my nomination. Mr. Katyal also assumed responsibility for acting upon all appeal and other litigation recommendations at this time. I have continued to handle some routine administrative matters.

Between March 5, 2010, when I was informed that the President wished to consider me for a possible Supreme Court vacancy, and May 10, 2010, when I was nominated, I handled the work within the Solicitor General's Office in the normal way; that is, I served as counsel of record in all filings in the Supreme Court and acted upon all appeal and other litigation recommendations. During this period, however, I scaled down my participation in more general departmental matters (which was not extensive to begin with). I ceased attending the Attorney General's morning meetings sometime in early-to-mid April. My participation in heath care litigation or legislation, both in this period and previously, is addressed in the questions above. And, to the best of my recollection, I also did not become involved during this time in any other new litigation--either cases filed against the government in the district courts or cases the government filed or was preparing to file in the district courts.

And it's perfectly appropriate for a potential nominee to start limiting the cases in which he or she would have to be recused. Each time a justice is recused from hearing a case, there is potential that the remaining justices will split 4-4 on the case and deprive the nation of a final resolution of the legal issue.

Indeed, Justice Samuel Alito noted this very problem in responses to written questions submitted in connection with his Supreme Court nomination. Alito stated that Supreme Court justices should limit the number of times they must recuse in order to avoid 4-4 ties:

Supreme Court justices have less latitude to err on the side of recusal, because recusal can lead to decisions that are evenly divided or that involve less than an absolute majority of the Court. Lack of a definitive resolution to a case when the litigants have no higher court that could resolve their cases undermines the judicial process.

Is the Journal seriously suggesting that Kagan should have gone out of her way to weigh in on the health care case even though it did not involve core solicitor general functions and she knew that her involvement might result in a 4-4 Supreme Court split on the issue? It appears so.

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