I'm confused. Didn't Kagan help write the bill? Shouldn't she recuse herself like she did in the immigration ruling?
As solicitor general of the United States, Kagan headed up an office that formulated the Obama administrations legal defense of the legislation.
She is obliged under Section 455(b)(3) of Title 28 of the U.S. Code to recuse herself from cases where a justice has served in governmental employment and in such capacity participated as counsel, adviser, or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case or controversy.
In February, Senator Jeff Sessions cited United States v. Gipson, a decision made by the Tenth Circuit that held judges who have previously taken a part, albeit small, in the investigation, preparation, or prosecution of a case must disqualify themselves.
Previously undisclosed e-mails that the Justice Department has released pursuant to court order demonstrate Kagans direct involvement in the administrations defense of the presidents health law from the very beginning, writes Sessions. In January 2010, she assigned her chief and only political deputy, Neal Katyal, to the matter the legal equivalent of a firms senior partner delegating work to a junior associate. That same month Katyal wrote in an e-mail to the associate attorney generals office that Elena would definitely like OSG [Office of Solicitor General] to be involved in this set of issues. These actions alone constitute personal participation in the preparation of the case, and that is all §455(b)(3) requires to trigger mandatory recusal.
Justice Kagans involvement in the preparation of the governments defense of the health-care law began at least as early as January 2010, four months before her nomination and two months before the bill became law. That she would not follow the same course in the health-care case is dubious. These facts require recusal, Sessions concludes.
During confirmation before the Senate Judiciary Committee, Kagan promised in a written questionnaire that she would follow the letter and spirit of 28 U.S.C. 455.