Conservatives Still Losing the Kagan-Thomas Recusalfest

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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 CNSNews.com, 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.

But of course the new recusal "questions" about Justice Kagan don't arise without compelling context and perspective. They arise from the shadows of the pending conflict allegations against Justice Thomas. His wife is a conservative activist with ties to groups campaigning for the repeal of the Care Act. He did not declare on federal financial forms hundreds thousands of dollars of her income from a conservative group. He attended conservative events hosted by the Koch brothers, the billionaire brothers who are overtly hostile to the new health care law. And in late February, the justice himself, in a speech sharp with political overtones, pointedly said that he and his wife "believe in the same things" like "liberty."

Is there a doubt in the mind of any sentient American how Justice Thomas will rule on the Affordable Care Act? Of course not. Are there similar doubts in anyone's mind about how Justice Kagan will vote on the Act if and when it comes before her? Not really. But my point is narrower; all the Kagan-busters do when they focus upon the junior justice's "ties" to the Care Act is make Justice Thomas' recusal problem seem that much more severe. The contrast flatters Justice Kagan, not Justice Thomas, since she's not out on the speaking circuit telling everyone that she "believes in the same things" as some of the law's most strident defenders.

If Justice Kagan has to recuse herself because she might have discussed with a subordinate how government lawyers were going to make arguments the whole world knew they were going to make then what's Justice Thomas's excuse for non-recusal after openly taunting his critics (and future Care Act litigants) by pointedly telling them all that he believes in the "same things" as his anti-Care Act wife? Conversely, if conservatives believe that the recusal calls against Thomas truly are "insipid" then how do they pivot and build a legitimate recusal case against Kagan based upon "What's your phone number?' and "you should do it"? Is there a word for "below insipid?"     

Oh, that's right. Each individual justice is allowed to search his or her own heart and mind to determine whether a conflict exists. And so Justice Thomas naturally has a different internal Recuso-meter than does Justice Kagan. Here's what ought to happen. Justice Kagan, the mensch that she is, out to tell Justice Thomas that she'll recuse herself from the Affordable Care Act if he recuses himself as well. Such a proposal would almost certainly leave the Kagan-busters speechless, a state they would then often share with the man we all know is going to stick around in the health care case so that he may vote "no" when formally asked if the Affordable Care Act is constitutional.

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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, and a fellow at the Brennan Center for Justice.

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