National Review Comes Up Empty In Campaign To Keep Kagan From Hearing Health Care Cases

Blog ››› ››› ADAM SHAH

National Review Online blogger Carrie Severino keeps pushing the argument that Supreme Court Justice Elena Kagan may need to recuse herself from cases dealing with the constitutionality of the health care reform law. However, after a series of posts suggesting that Kagan might have lied when she said she was not involved in strategizing over how to defend the health care law, Severino has acknowleged that she doesn't "see enough evidence to know whether Justice Kagan must recuse herself from considering the upcoming Obamacare challenges."

The campaign to stop Kagan from hearing health care cases began last summer during her confirmation hearings.

The Wall Street Journal argued that Kagan might have participated in strategizing over litigation involving the constitutionality of the health care reform law and therefore might have to recuse herself from health care reform-related cases. The Journal suggested a series of questions for Republicans to ask Kagan before voting on her nomination.

When Republicans asked those questions, Kagan responded that she had not been involved in discussions of the health care reform law or litigation involving the law. That appeared to settle the matter for the Journal, which subsequently said, "We have no reason not to take Ms. Kagan at her word."

However, others in the right-wing media have since filed Freedom of Information Act (FOIA) requests in order to try to prove that Kagan was lying. A FOIA request by the right-wing media outlet CNS News turned up no evidence that Kagan discussed the health care reform bill or litigation, but Severino still argues that at some point in the future, perhaps some documents showing that Kagan was involved will surface.

In posts on March 30, April 1 and April 8, Severino hyped the documents CNS News received. She did this even though the CNS News article to which she links, while filled with innuendo, makes a key admission. CNS says that nothing in the released documents triggers the recusal standards of federal law:

Did Kagan at any time as solicitor general express an "opinion concerning the merits" of the lawsuits filed against the health care law -- an act that would trigger one of the recusal standards in 28 U.S.C. 455? In the text of the emails the Justice Department provided to, Kagan does not do so.

In her latest post, however, Severino herself acknowledges that neither she nor CNS has discovered anything that would require Kagan to recuse herself. Severino wrote today: "From what we know so far, I don't see enough evidence to know whether Justice Kagan must recuse herself from considering the upcoming Obamacare challenges."

That's not to say Severino is going to give up; she immediately adds that the FOIA documents "certainly point" in the direction of recusal. She then adds: "This is precisely why JCN filed its FOIA request trying to reach more documents on this issue. The public deserves answers to the growing questions about Kagan's involvement in Obamacare."

And if those documents turn up no evidence that Kagan should recuse herself, surely Severino will find yet another reason to believe that she is right around the corner from finding the smoking-gun document that will prevent Kagan from hearing challenges to health care reform.

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