Conservative group calls on Kagan to sit out healthcare cases

Conservative legal activists on Wednesday renewed their calls for Supreme Court Justice Elena Kagan to abstain from cases involving President Obama’s healthcare law.

Conservatives say Kagan should recuse herself from suits over the law’s individual mandate because the administration began planning its defense while she was solicitor general. Kagan has recused herself from dozens of cases because of her work in the Justice Department, but has shown no signs so far of sitting out healthcare suits.

The justices are slated to meet privately Thursday to discuss whether they should hear a challenge to the healthcare law’s constitutionality. Ahead of that meeting, the conservative Judicial Crisis Network (JCN) reiterated suspicions about Kagan’s objectivity.

“Her jump from advocate to judge on the same issue raises profound questions about the propriety of her continued participation in the case,” JCN said. “Moreover, the legitimacy of any decision where she is in the majority or plurality would be instantly suspect if she chooses not to recuse herself.”

The JCN paper cites previously released emails in which Justice Department officials discuss their preparations for defending the healthcare law in court. The documents do not provide concrete evidence that Kagan was personally involved in the planning, but JCN has inferred from the emails that Kagan played an active role

The solicitor general represents the executive branch in court, and Kagan was solicitor general when planning got under way for lawsuits over the healthcare law. JCN’s report notes that the solicitor general’s office was involved in the planning before a suit had been filed, saying the early engagement shows that Kagan wanted to ensure a strong defense.

Kagan’s principal deputy at the time, Neal Katyal, said in one email that he handled the healthcare suit for the solicitor general’s office “and have never discussed the issue with her one bit.” JCN contrasted that statement with Kagan’s statement that she “neither served as counsel of record nor played any substantial role,” concluding that she must have been involved to some extent she did not consider “substantial.”

Although Kagan had not yet been nominated for a seat on the Supreme Court when the planning began, she had already been floated as a potential nominee for the first opening Obama filled, which eventually went to Sonia Sotomayor.

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