Research Briefing

Will Kagan Recuse Herself On Obama Agenda?

IT’S STILL UNCLEAR WHETHER KAGAN WILL RECUSE HERSELF

ON CONTROVERSIAL OBAMA AGENDA ITEMS

“Under Federal Law … Judges Who Have Served In Government Must Recuse Themselves When They Have ‘Participated As Counsel, Adviser Or Material Witness Concerning The Proceeding Or Expressed An Opinion Concerning The Merits Of The Particular Case In Controversy.’” (Editorial, “Kagan And ObamaCare,” The Wall Street Journal, 7/13/10)

Kagan Has Taken A Very Narrow View On The Cases She Would Recuse Herself From. “If confirmed, Elena Kagan said she would recuse herself from at least 11 cases the Supreme Court is scheduled to hear next term because of her work in the Solicitor General’s office. Supreme Court justices commonly recuse themselves from — or decline to participate in — cases if there is a possible conflict of interest….Kagan also said she would recuse herself on cases in which she submitted a recommendation for action in lower courts; authorized an appeal, intervention or amicus brief; or reviewed a draft pleading.” (Channing Turner, “If Confirmed, Kagan To Recuse In 11 Cases Next Term,” Main Justice, 7/09/10)

On Health Care, “It’s Hard To Believe She Wouldn’t Have Been Asked At Least In Passing About A Constitutional Challenge Brought By So Many States.” “Recusal arises as a matter of judicial ethics if as a government official she expressed an opinion on the merits of the health-care litigation. This is what she would have to render a judgment on were she to be confirmed for the High Court. It is also the question on which she is likely to have participated given her role at the Justice Department. The SG is the third ranking official at Justice, and its senior expert on Constitutional issues, so it's hard to believe she wouldn't have been asked at least in passing about a Constitutional challenge brought by so many states.” (Editorial, “Kagan And ObamaCare,” The Wall Street Journal, 7/13/10)

On Immigration, What Role Did Kagan Play In Her Office’s Challenge Of A 2007 Arizona Immigration Law, And What Role Would She Play As The Court Considers Arizona’s New Immigration Law? “The House Republicans want the Senate to grill Supreme Court nominee Elena Kagan on her involvement in a federal challenge to an Arizona immigration law….The immigration issue would be one of several concerns that have developed among Kagan's critics in recent weeks….Fourteen Republican representatives on Thursday wrote to the ranking Republican on the Senate Judiciary Committee, Sen. Jeff Sessions, urging him to press Kagan on her role in the administration's Supreme Court filing in May challenging a 2007 Arizona law. The law gives the state the right to suspend business licenses of employers hiring illegal immigrants.” (“Concerns Over Kagan’s Immigration Views Add To Debate Ahead Of Hearing,” Foxnews.com, 6/25/10)

THOUGH SHE’S SHOWN IN THE PAST TO PUT POLITICS AHEAD OF POLICY

Kagan Has Argued For Expanded Presidential Power As “A Mechanism To Achieve Progressive Goals.” “As a matter of policy, moreover, Kagan writes that she sees presidential supervision of federal agencies ‘as a mechanism to achieve progressive goals’ in areas such as environmental protection. She believes that presidential supervision can ‘jolt into action bureaucrats suffering from bureaucratic inertia in the face of unmet needs and challenges.’ She believes that it is important to render the bureaucratic sphere ‘more transparent and responsive to the public, while also better promoting important kinds of regulatory competence and dynamism.’ This is a view of presidential power that traces its lineage to Theodore Roosevelt and FDR.” (Walter Dellinger, “Executive Power,” Slate.com, 4/16/10)

At White House, Kagan’s “Sharpest Skills Were Her Political Antennae.” “In the spring of 1997, Elena Kagan fired off a caustic e-mail to her superiors in the Clinton White House, cautioning that ‘we definitely should not’ announce that the president planned to select the director of the Centers for Disease Control and Prevention to become the next surgeon general… Taken together, the e-mails reinforce an image that emerged in the first two batches of White House documents, made public earlier this month, of a confident aide who came into the Clinton administration after working as a law professor, but whose sharpest skills were her political antennae.” (Amy Goldstein, “Kagan's Newly Released E-Mails Reveal Confident Voice In Clinton White House,” The Washington Post, 6/19/10)

Kagan Recommended Clinton Endorse Amendment She Believed Was Unconstitutional To Protect President’s “Credibility.” “The Office of Legal Counsel of the Justice Department similarly believes that both the Daschle and the Feinstein amendments, properly read, violate Roe because they countenance tradeoffs involving women’s health. … We recommend that you endorse the Daschle amendment in order to sustain your credibility on HR 1122 and prevent Congress from overriding your veto.” (“Memorandum From Bruce Reed And Elena Kagan To President Bill Clinton,” ABC News, 5/13/97)