November 22, 2011
by Tevi Troy
There is a lot of speculation regarding whether Justices Elena Kagan or Clarence Thomas should recuse themselves from the Supreme Court case on President Barack Obama's health care law. Kagan, for her part, was Obama's solicitor general at the time the law passed and emailed Harvard Law professor Larry Tribe expressing her excitement over the bill's passage. As for Thomas, his wife, Virginia, has been an active and vocal opponent of the law in question.
Because most of the speculators (this one included) are not qualified to decide this question, I reached out to alumni of the White House Counsel's Office from several administrations. The White House Counsel's staffers serve as the internal lawyers dedicated to making sure the president's activities are legal and to protecting the president and the White House from embarrassment. They handle recusal questions for any staff member who may have any kind of ethical or financial conflict of interest. In addition to recusals, the counsels handle a variety of ethics questions and clearances for potential appointees and generally draw the line in terms of what is appropriate partisan activity. This means that they tend to be less political than other White House staffers, because they often need to stand up to the White House political office or the party committees.
Everyone I contacted spoke to me on condition of anonymity. The respondents dismissed the calls for Justice Thomas's recusal and generally agreed that his wife's activities would come into play only if she had a financial interest at stake in the case, which she does not. Even a former member of the Obama Counsel's office did not consider it "fair to ask him to recuse himself merely because his wife is active in groups opposing the law."
Regarding the propriety of Justice Kagan's participation in hearing a health care lawsuit, the responses were more mixed, although no one thought that this was a "slam-dunk" issue. All agreed that her cheering on passage of the health care law did not mean much and that justices are allowed to have personal views on issues. Even though some conservatives have seized on the fact that Kagan's celebratory email to Tribe about health care bill's passage had two exclamation points — "I hear they have the votes, Larry!!" — her excitement over the bill's passage would not require her to recuse from the case, they said.
Kagan, however, was more than just excited about the bill. She was also the head of the office that would have to defend the law in the case of a constitutional challenge. It is this position and her role, if any, in preparing the Obama administration's defense of the law, that is the nub of the matter. The law on this is pretty clear.
A judge should not participate in a case if he or she was involved in it as a government lawyer. Kagan stated in her Senate confirmation hearing that she was not involved in preparing a potential defense of the law. But some internal emails that have been released indicate that she was at least asked about the question, even though she was too cagey to answer the questions over email and suggested a phone conversation instead. We cannot with certainty know what was said in her conversations. Perhaps she warned colleagues that she could not be involved in this issue because of her possible ascension to the court, in which case recusal would not be necessary. Or perhaps she helped craft the government's case while being careful to avoid laying down electronic fingerprints. We would need to know the entirety of the facts of her involvement before making a final determination.
In the case of legal murkiness, though, White House counselors would typically recommend that officials bend over backward to avoid even the appearance of a conflict. That is unlikely to happen in this case, though, because no outside counsel is making the call.
Ultimately, lifetime-tenured justices determine whether they should recuse. As one White House Counsel alum put it, in the end "justices recuse when they want to recuse, and there's nothing we can do about it." In addition, if Kagan were going to recuse, it would almost certainly have been noted in the order accepting the case.
This may be a shortsighted approach. We live in a deeply divided nation, and the health care law is incredibly vast, transformative and controversial. If the law were to survive court scrutiny by one ethically questionable vote, the questions and controversy would continue to fester. Justice Kagan has already apparently made her decision, and all nine justices will listen to all 5½ hours of argument in one of the most crucial cases of our lifetime.
But she, and our nation, would be better served if she were to seek the views of outside counsel and take their recommendation on this important issue.
Tevi Troy is a Visiting Fellow at Hudson Institute and served as the Deputy Secretary of the U.S. Department of Health and Human Services from 2007 until 2009.
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