Judge advocate?

The Supreme Court will hear challenges to the health care reform act early next year, and Justice Elena Kagan can’t allow herself to go near it.


The judiciary was established precisely to have independent, uninvolved, objective and detached observers stand in judgment where there are disputes of law or fact. The evidence is not all in – there are likely memos, briefs, e-mails yet to be discovered – but the available evidence certainly casts serious doubt on Elena Kagan’s standing as a dispassionate and impartial observer in this case.

Indeed, one single e-mail proves it: In a missive to liberal professor Laurence Tribe, Kagan once wrote of the health care law in question, “I hear they have the votes, Larry!! Simply amazing.”

Those are the words, and the exclamation points, of an excited advocate for the law. Now she will sit in judgment of it on behalf of us all?

Is there any question how she would vote?

We’re not suggesting Mr. Obama would have done this – but a president who wanted his signature piece of legislation to stand up at the Supreme Court might have that in mind when appointing justices from his team. Such a cynical ploy would only work, of course, if the person in question violated all ethical canons and declined to recuse himself or herself from the case.

It just so happens Elena Kagan was the Obama administration’s solicitor general – the person responsible for advocating the government’s positions before the Supreme Court. Fact is, Kagan has never been a judge – never anything but an advocate.

In fact, Kagan was more of an advocate than any previous solicitor general in our history: The office traditionally has been involved in cases only on appeal; reports indicate Kagan made sure her office was involved in the health care reform act even before it was law.

Writes Carrie Severino of the Judicial Crisis Network:

“As President Obama’s top advocate, Kagan headed the office responsible for formulating the administration’s defense of (the health care law) and oversaw the arguments both on appeal and in the lower courts ... The president is now asking her to adopt the very same positions her office helped craft for him on this matter, but this time, as a Supreme Court Justice. Her jump from advocate to judge on the same issue raises profound questions about the propriety of her continued participation in the case. ... To use a sports analogy, would anyone trust the outcome of a close game where the referee had been a coach for one of the teams earlier in the game?”

Adds John Vinci of Americans for Limited Government, “she and those who reported to her were heavily involved in framing the arguments supporting the law.”

Putting it in the light most favorable to Ms. Kagan, having never worn the robe of impartiality, it’s quite possible she might never even see the problematic nature of her sitting on the Obamacare case. She has the obligation to see it. If she has a modicum of the sense of propriety and honor that her supporters say she does, she ought to recuse herself from sitting in judgment of the health-care law she plainly favored.

Perhaps the president, who no doubt would want the law to rise or fall purely on its merits – and not at all amid a whiff of favoritism – ought to encourage Ms. Kagan to remove herself from the case.

Regardless, the court’s decision next June could be pivotal in next November’s elections. Would an overturning of it, primarily the ominous “individual mandate” requiring every American to buy health insurance, be the death of the Obama administration – or would it embolden his supporters? Would an upholding of the law propel Mr. Obama to re-election – or further enrage the opposition at the polls?

For all its implications for our privacy and individual liberty, and its certain impact on political fortunes for years to come, commentator Charles Krauthammer is right: This case will likely be the most consequential in nearly 40 years, since Roe v. Wade.

The whiff of history in the air alone might impel Elena Kagan to want to be a part of that. Honor and integrity forbid it.



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