National Review Online's Carrie Severino is still pursuing her quixotic quest to have Supreme Court Justice Elena Kagan recused from any cases dealing with the Affordable Care Act. In a recent blog post and report, Severino has concluded that based on the evidence she has seen, Kagan should "recuse herself from any consideration of [the Affordable Care Act's] legality before the Supreme Court."
The charge is baseless. Kagan has said that she had not been involved in any substantive discussions of the health care reform law, the constitutionality of the law, or litigation involving the law.
And importantly, faced with the same evidence that she's now citing, Severino acknowledged back on April 11 that she didn't "see enough evidence to know whether Justice Kagan must recuse herself from considering the upcoming Obamacare challenges."
The facts haven't changed, but Severino's conclusions certainly have. It seems that Severino hoped she would find a smoking gun that required Kagan's recusal. And when she failed in that attempt, Severino simply reversed herself on what those facts mean.
Severino's Judicial Crisis Network put out a report arguing that Kagan took part in strategizing about health care reform litigation when she was solicitor general in the Obama administration and therefore must recuse herself from considering the case as a judge.
Severino's report cites a January 2010 email from Kagan's then-deputy in the solicitor general's office, Neal Katyal, responding to an Obama administration request that the solicitor general's office send a representative to a meeting to discuss how to defend the health care bill from legal challenges. In the email Katyal said, "Let's crush them. I'll speak to Elena and designate someone [to attend]." Katyal then became the solicitor general's office's point person on health care litigation.
But Severino already knew about this exchange on April 11 when she said there was no evidence requiring Kagan to recuse herself. Indeed, Severino cited that e-mail in an April 1 blog post about the recusal issue.
Severino next cites an email in which Katyal said he would "bring in Elena as needed." Severino noted this exchange in her April 1 blog post as well.
Severino then cites an email in which Katyal said he wanted to make sure the office was "heavily involved even in the dct [District Court]." Severino noted this exchange in her April 1 blog post as well.
Severino also argues that, because some material has been redacted from FOIA disclosures due to an exemption for certain privileged materials, Kagan needs to recuse herself. As an example, Severino cites an email in which Katyal says, "In light of this, for what it is worth, my advice (I haven't discussed this with Elena, but am cc'ing her here) would be that we start assembling a response, [material redacted] so that we have it ready to go." This email (including the redaction) was the third in a set of documents to which Severino linked in her April 1 blog post. As a whole, the redactions were almost impossible to miss in that set of documents.
So almost every piece of evidence Severino cites in her report consists of something she already mentioned on April 1. And all of the evidence was available by then. And yet on April 11, she concluded that there was nothing she had yet seen that required Kagan's recusal.
Furthermore, Severino is not the only conservative who has come to the conclusion that these documents did not require Kagan's recusal. Based on the same set of documents, Terry Jeffrey of the conservative CNS News wrote on March 29:
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 CNSNews.com, Kagan does not do so.
So what has changed since Severino said that she didn't see anything that required Kagan's recusal? Well, for one thing, conservative judicial icons Jeffrey Sutton and Laurence Silberman have written decisions upholding the constitutionality of the individual mandate.
Maybe the anti-health care reform forces are just getting desperate.