In November, Attorney General Eric Holder told the Senate Judiciary Committee that whenever discussion in his conference room turned to ObamaCare, they physically removed Elena Kagan (then Solicitor General) from the room. (Watch the video here) Holder seemed almost proud of the fact that he and his deputies physically removed their own chief appellate lawyer from the room, as though it was the honorable or ethical thing to do. However, as is explained below, neither ethics nor honor required Kagan’s removal from the room. Why then was she removed?
Why did Holder and his team remove one of their top-level employees, Solicitor General Elena Kagan, from the room? Was it not her job to help them defend ObamaCare? Did they not value her advice on ObamaCare? After all, Kagan had already participated in helping craft a defense of ObamaCare by that time. So aside from trying to un-involve her (a futile endeavor similar to trying to un-ring a bell) why would Holder and his crew remove her?
The Obama Administration was preparing to appoint Kagan to the Supreme Court. They desperately wanted a key member of their team to protect ObamaCare from inevitable Constitutional challenges by ruling on it at the Supreme Court. Team Obama wanted a guaranteed vote from one of their favorite players.
Holder and his department knew Kagan liked ObamaCare – internal emails forcibly disclosed under federal lawsuit now reveal that Kagan was, in fact, a big fan of ObamaCare. So, it appears Holder, the Department of Justice, and Kagan made a political decision – that she would be more valuable to ObamaCare sitting on the Supreme Court than she was in her current job. They chose to ignore the fact that she was already disqualified from sitting on ObamaCare as a Justice because she had already been involved in defending ObamaCare (she made the decision to use the power of her office to defend ObamaCare, and hand-selected her top political deputy to lead the defense). Ignoring these key facts, Holder tried to “un-ring the bell” of Kagan’s already necessary recusal at the court by throwing her out of meetings on ObamaCare.
At this point, Kagan still did not have a conflict. Kagan’s job – her sworn duty – as Solicitor General was to represent the Department of Justice in the ObamaCare lawsuit and to defend ObamaCare. Nothing – absolutely nothing – prevented her from doing that job.
In the end, there is one glaring problem with this attempted “recusal.” It occurred at the wrong time, and in the wrong place, i.e., the wrong branch of government. It should have occurred at the Judicial branch and not at the Executive branch. The reason is as simple as understanding the difference between “past, “present,” and “future.”
You see Solicitor General Elena Kagan did not have any past involvement in ObamaCare when she was “physically recused” at the DOJ. What she did have was potential future involvement with ObamaCare at the Supreme Court. But such potential future involvement at the Court would require future recusal at the Court, not present recusal at her present job where she did not have a present conflict.
It is not uncommon for lawyers to be unable to work on matters due to a conflict of interest. However, such conflicts invariably arise from past work on the same matter, not anticipated future work on the same matter.
The proper course for Kagan at the Executive Branch was not to run from the room, but to do her job at the Executive Branch and to continue defending ObamaCare; and then to recuse herself in the future if her new job as a Supreme Court Justice should involve ObamaCare. Indeed, she had a responsibility and a duty as the Solicitor General to be present for discussions on ObamaCare. Instead, Kagan failed to perform her present duties as Solicitor General in an errant attempt to set herself up in the future to rule on ObamaCare at the Court.
Attorney General Holder has recently, and repeatedly, used the power of his office to shield himself and his Deputies from difficult questions on apparent mismanagement, dishonesty and misconduct on issues such as the Fast and Furious scandal. As we are learning from that case, the truth – when vigorously pursued – cannot be hidden forever. Our elected representatives will hold political appointees, like Holder, accountable.
Roughly a week ago, Holder finally released additional documents on Fast and Furious which he had previously tried to conceal. Now it is time for Holder to immediately address unanswered questions on Kagan’s role in ObamaCare, and Congress must continue to aggressively pursue him until Holder finally answers:
Kagan’s physical removal from the room when it was not legally necessary – but was politically expedient – calls her impartiality into serious questions and is just one more reason why Kagan must presently recuse from the ObamaCare litigation. The question is: who will physically remove Kagan from the room this time?