When a Supreme Court Judge Should Recuse Themselves

 AP Photo/Susan Walsh

According to 28 USC 455, a Supreme Court justice must recuse from “any proceeding in which his impartiality might reasonably be questioned.” The law also says a justice must recuse anytime he has “expressed an opinion concerning the merits of the particular case in controversy” while he “served in governmental employment.”

Emails between Elena Kagan and Harvard Law Prof. Laurence Tribe, have finally been released per freedom of information act.

Tribe: “No. I never ‘mention[ed] or discuss[ed] pending or enacted health-care legislation, or actual or anticipated health-care related litigation, with Elena Kagan when she was solicitor general,’ and ‘this March 21, 2010 email exchange represent[s] the entirety of [my] communications to her on those matters during her tenure in that office.’”

Click title of post for full article and details.

Does this email exchange require Kagan to recuse herself from judging the health care law?

The March 21, 2010 email exchange between Kagan and Tribe was started by Tribe who addressed an email to Kagan at her Justice Department email account. Tribe also copied this message to another individual, whose name has been redacted from the version of the document DOJ released to the MRC.

The subject line on Tribe’s email reads: “fingers and toes crossed today!”—an apparent reference to the unusual Sunday vote on the health-care bill that would occur later that day in the House. In the email, Tribe reminded Kagan of a dinner meeting they had to postpone and suggested they reschedule it.

Kagan responded to the message in a return email that is addressed solely to Tribe. The subject line on this Kagan-to-Tribe email is: “Re: fingers and toes crossed today!”

Kagan punctuated the first sentence of this email to Tribe with two exclamation marks: “I hear they have the votes, Larry!! Simply amazing.”

She then proposed they reschedule their dinner meeting sometime after March 31: “Let’s go wherever you want: I think you mentioned a place in the Mandarin, which would be great. Give me any dates you want after March 31.” Kagan then mentions another person (whose name is redacted) who “expressed an interest in joining as well.”

Tribe responded by return email, carbon copying an individual or individuals whose names have been redacted by the Justice Department. This message was sent at 5:06 p.m.

“So health care is basically done!” Tribe wrote to Kagan in this message. “Remarkable. And with the Stupak group accepting the magic of what amounts to a signing statement on steroids!”

The “Stupak group” is a reference to then-Rep. Bart Stupak (D-Mich.), who led a group of House Democrats who had indicated they would not vote for the Patient Protection and Affordable Care Act if it permitted federal funds to pay for abortions. Stupak and his allies decided to vote for the bill, even though no additional language would be added to it prohibiting abortion funding, after President Obama agreed to sign an executive order the administration said would prevent federal funding from going to abortions.

Tribe’s email then goes on to discuss the proposed dinner. “Re dinner, I now remember the place you’d suggested back in December: Founding Farmers. I still like the name and don’t recall why I’d thought the place in the Mandarin would be worth trying. So how about our going to Founding Farmers with you and [name redacted]?”

The next email, marked as sent at 11:00 p.m. (23:00:58) is from someone whose name is redacted. This person says he or she “would be available on April 7 or 13.”

At 11:04 p.m., Elena Kagan sends an email to herself Tribe, an assistant at the Justice Department and someone whose name is redacted. “I can do April 12,” she said.

That same day—March 21, 2010—as PPACA was passing the House, Kagan had a separate email exchange with her top deputy Neal Katyal.

This email chain started At 6:11 p.m., when associate Attorney General Tom Perrelli sent a message to a group of DOJ lawyers, including Katyal, notifying them that there was going to be a meeting the next day to plan for the litigation expected to challenge PPACA. DOJ released this email to the Media Research Center earlier this year, after MRC sued seeking to force DOJ to comply with CNSNews.com's FOIA request seeking documents related to Kagan and the issue of recusal and related to health-care legislation and litigation.

The subject line on Perrelli’s 6:11 p.m email was: “Health care litigation meeting.”

“It sounds like we can meet with some of the health care policy team tomorrow at 4 to help us prepare for litigation,” Perelli wrote in this email. “It has to be over there. Can folks send me the waves info (full name, SSN, DOB) of everyone that should attend as soon as possible? WH wants it tonight, if possible. I know we won’t get everyone’s in tonight.

“Also,” Perrelli continued, “we need to think about the key issues/question for the agenda. [Language redacted] tops my list, but I know there are others.”

At 6:18, Katyal forwarded this email to Kagan. “This is the first I’ve heard of this,” Katyal told Kagan. “I think you should go, no? I will, regardless, but feel like this is litigation of singular importance.”

One minute later—at 6:19 p.m.—Kagan responded to Katyal: “What’s your phone number?”

Three minutes after that, Katyal sent Kagan his phone number and the email chain ended.

When Tribe was asked for his opinion...

CNSNews.com: “Do you believe any of the provisions of 28 USC 455 require Justice Elena Kagan to recuse herself from cases involving the Patient Protection and Affordable Care Act?”

Tribe: “No. I do not have any reason to believe that any of the provisions of 28 USC 455 require Justice Elena Kagan to recuse herself from cases involving the Patient Protection and Affordable Care Act.”

I think it's fairly clear what Kagan's opinion is concerning the health care law. I'm not sure how or why she should not recuse herself. What is your opinion?

Supreme Court Justice Antonin Scalia speaks to a policy forum in Washington last month. (Manuel Balce Ceneta/AP)

In a desperate attempt to create distraction from Kagan, liberals are now going after Justice Scalia and Thomas. Why, you ask?

Another sponsor was pharmaceutical giant Pfizer Inc, which has an enormous financial stake in the outcome of the litigation. The dinner was held at a Washington hotel hours after the court's conference over the case. In attendance was, among others, Mitch McConnell, the Senate’s top Republican and an avowed opponent of the healthcare law.

The featured guests at the dinner? Scalia and Thomas.

It’s nothing new: The two justices have been attending Federalist Society events for years. And it’s nothing that runs afoul of ethics rules. In fact, justices are exempt from the Code of Conduct that governs the actions of lower federal judges.

This is so typical of the liberals in the media - anything to obfuscate the REAL issue-Kagan is a liar!

On July 13, 2010, during her confirmation process, the Republicans on the Senate Judiciary Committee sent Kagan a letter asking her a series of questions probing her possible involvement in health care legislation or litigation during her time as solicitor general. The senators asked: “Have you ever been asked about your opinion regarding the underlying legal or constitutional issues related to any proposed health care legislation, including but not limited to Pub. L. No. 111-148, or the underlying legal or constitutional issues related to potential litigation resulting from such legislation?”

The sentors also asked Kagan: “Have you ever offered any views or comments regarding the underlying legal or constitutional issues related to any proposed health care legislation, including but not limited to Pub. L. No. 111-148, or the underlying legal or constitutional issues related to potential litigation resulting from such legislation?”

Kagan’s written response to both questions was: “No.”

Scalia and Thomas attending a dinner is a far cry from what Kagan did.

Moreover, conservatives argue that it’s Justice Elena Kagan who has an ethical issue, not Scalia and Thomas. Kagan served as solicitor general in the Obama administration when the first legal challenges to the law were brought at the trial court level. Her critics have pushed for Kagan to recuse herself from hearing the case, saying that she was too invested in defending the law then to be impartial now. Kagan has given no indication she will do so.

I have no problem with Scalia or Thomas and quite frankly, I am hoping they are against this socialist health care bill.

I forgot to mention that democrats also want Scalia to recuse himself because his wife is a lobbyist and has fought against the health care bill. Again, more obfuscating. His wife? Another sign of their desperation to take the heat off of Kagan.