What Did Kagan Tell Her Deputy About Winning the Health-Care Case? DOJ Won’t Say

Terence P. Jeffrey|CNSNews

Kagan's close relationship with the president goes even further back to her involvement on Obama's eligibilty as president of the United States.

To an ordinary American it might seem like an obvious question with an obvious answer.

When Solicitor General Elena Kagan–whose job was to defend the administration’s position in federal court cases–assigned her top deputy to handle the anticipated legal challenges to the health-care bill that President Barack Obama was pushing through Congress in 2010 did she indicate to that deputy that the administration should defeat those challenges?

Common sense might say: Of course.

But if the common sense answer were in fact the true answer, then the plain sense of the law governing recusals by Supreme Court justices would seem to require Kagan to recuse herself from judging the legal challenges to President Obama’s health-care law.

In the questionnaire she filled out for the Senate Judiciary Committee during her confirmation process, Kagan said she would abide by the “letter and spirit” of 28 U.S.C. 455 in determining whether she needed to recuse herself from any case as a Supreme Court justice.

This law says that any “justice … shall disqualify himself in any proceeding in which his impartiality might be reasonably questioned.”  It further says any justice “shall also disqualify himself … [w]here he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceedings or expressed an opinion concerning the merits of the particular case in controversy.”

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