Conservatives Still Losing the Kagan-Thomas Recusalfest

Reckoning that the best defense can be a good offense, conservative activists now have amped up their efforts to force Supreme Court Justice Elena Kagan to recuse herself from the looming High Court showdown over the Patient Protection and Affordable Care Act. But when you compare the latest points in their "recusal case" to ones offered by progressive activists pressing Justice Clarence Thomas to step aside in the fight over the new health care law, it just isn't a close call.  

The new charges against Justice Kagan come from a conservative website run by the Media Research Center which in turn is run by the seemingly ageless Brent Bozell. Following a Freedom of Information Act request of the Justice Department, the Cybercast News Service posted a long take last week based upon internal emails between DOJ officials discussing the formal government defense of the Affordable Care Act. The piece is a good read -- mostly because it gives ammunition to both sides in the partisan war over the Court.

It gives conservatives fuel for their theory that Justice Kagan's hands were all over early federal strategy in the pending Care Act litigation, a status that would generate another statutory reason for her to consider recusing herself (remember, no one can force her to do so). In this world, the DOJ emails indicate (or imply, anyway) that Kagan was a wily operator who was smart enough not to create a "written" record about her involvement in the law's defense. But the piece gives progressives ammunition, too. If this is the best Bozell and company can do to link the junior justice to the Care Act, it's small beer -- and hardly worthy of yet another recusal for Kagan.

From what I can tell, the two ostensible "money quotes" CNS has uncovered so far from (then-Solicitor-General) Kagan's emails are: "You should do it" (responding to a request from her principal deputy, Neal Katyal, who wanted to take the lead in defending the statute) and: "What's your phone number?" (responding, again, to Katyal, who was asking her if she wanted to be involved in DOJ strategy sessions about the new law). That's it. Like bringing a putty knife to a gunfight. No judge, not even a justice who already has recused herself from dozens of cases, would reasonably recuse based upon that. Here's how Tony Mauro covered the story for the National Law Journal. He wrote: 

The documents, mainly in the form of printouts of internal email chains, show that now-Acting Solicitor General Neal Katyal - not Kagan herself -- was the point person within the office on discussions of the new health care reform law and how to defend it in court. Released to, a conservative-oriented news outlet, the emails also reveal how Kagan was walled off from discussions of the law -- possibly because she already knew she might be nominated to the high court, where a challenge to the statute would ultimately be decided.

The release has raised eyebrows among lawyers familiar with the long tradition of the solicitor general's office resisting release of internal documents so as not to hamper deliberations on cases. Numerous redactions in the documents shield portions of the emails, including the names of associates in the SG's office. But Kannon Shanmugam, a veteran of the SG's office who is now an appellate partner at Williams & Connolly, said the documents represent "an unusual if not unprecedented" look at the office's operations. "It raises concerns about chilling lawyers in the office in the conduct of their work, and gives an incentive not to put things down in emails."

Justice Kagan's involvement, or not, in strategy and tactics over the Care Act is a legitimate question for anyone to pursue. In a legal and political vacuum it might even be reasonable to spend some time and energy figuring out the various contradictions, if any, between the contents of FOIA documents and her testimony last summer before the Senate Judiciary Committee during her confirmation hearing. I suspect that her testimony was as complete, at least, as was the testimony of her three immediate predecessors onto to the bench, Justices Sonia Sotomayor and Samuel Alito and Chief Justice John Roberts.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, a fellow at the Brennan Center for Justice, and Commentary Editor at The Marshall Project

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