Former U.S. AG: Kagan, Thomas should hear health care case

Jessica M. Karmasek Dec. 14, 2011, 3:00pm




WASHINGTON (Legal Newsline) - A former U.S. attorney general says the entire U.S. Supreme Court, including Justices Elena Kagan and Clarence Thomas, should hear the multistate challenge to President Barack Obama's federal health care law.

Michael B. Mukasey, who was appointed the nation's top lawyer following the resignation of Alberto Gonzales, served during President George W. Bush's administration.

Prior to that, he served 18 years as a judge on the U.S. District Court for the Southern District of New York.

In a column in the Wall Street Journal Dec. 5, Mukasey says neither Kagan or Thomas should be forced to step aside. "The court we have should decide the case," he wrote.

For months, various groups have urged Kagan and Thomas to recuse themselves from the multistate lawsuit, or at least explain why they refuse to do so.

Fourteen states, later joined by 12 others, filed a challenge to the law in March 2010. The 26 states contend that its individual mandate requiring that all Americans purchase health insurance or face a $695 penalty every year is unconstitutional.

The states filed a petition in September to have their challenge heard immediately by the U.S. Supreme Court.

The nation's high court agreed in November to hear the case.

That same month, the Judicial Crisis Network published a "white paper" pointing out that Kagan, as solicitor general for Obama, was directly involved in the defense of the law.

"As President Obama's top advocate, Kagan headed the office responsible for formulating the administration's defense of (Patient Protection and Affordable Care Act) -- and oversaw the arguments both on appeal and in the lower courts because of PPACA's national importance," according to the paper.

"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."

In May, Judicial Watch released highlights from documents received through a Freedom of Information Act lawsuit.

The group says a Jan. 8, 2010 email from former Deputy Solicitor General Neil Katyal is further proof of Kagan's involvement.

Katyal wrote that Kagan would be brought in "as needed" for cultivating a defense. Katyal also urged Kagan to attend a health care litigation meeting in March 2010.

Judicial Watch said, "In another email exchange that took place on Jan. 8, 2010, Katyal's Department of Justice colleague Brian Hauck asked Katyal about putting together a group to discuss challenges to ObamaCare. 'Could you figure out the right person or people for that?' Hauck asked. 'Absolutely right on. Let's crush them,' Katyal responded. 'I'll speak with Elena and designate someone.'"

As for Thomas, some House Democrats earlier this year urged him not to sit on the case because of his wife's heavy opposition to the health care law.

Virginia Thomas, an attorney, founded the conservative advocacy group Liberty Central in 2009. She also is affiliated with the Tea Party, one of the groups opposing Obama's health reform.

Another group, Justice at Stake, recommended last month the two justices provide written explanations as to why they won't recuse themselves.

But Mukasey says none of it is necessary.

"Although critics have portrayed Justice Kagan during her tenure as a 'cheerleader' for the health-care bill, and although she did send an email to a former faculty colleague that applauded the legislation, the solicitor general ordinarily is not called on to advise on issues of constitutionality of proposed legislation; that task usually falls to the Office of Legal Counsel. There has been no evidence that she acted personally in her official capacity as solicitor general in connection with any issue in the case," he wrote.

"As to Justice Thomas, the facts said to bear on recusal stem not from his own acts and statements, but solely from those of his wife, who has been described as a conservative activist affiliated with groups that have a position decidedly opposed to the health-care legislation and its individual mandate. But here, too, the case for recusal is flimsy at best."

In his column, Mukasey argues a judge is just as obligated not to recuse himself when recusal is unnecessary as he is to step aside when it is.

He also contends the current process of selecting judges -- "a high stakes exercise for agenda-driven politics" -- has partially contributed to the current situation.

"It will take a long period of concentrated effort to reverse the process of off-loading political issues onto the courts, selecting judges based on their perceived proclivities in deciding political issues, and seeking political advantage from and reading political motive into every court decision with a political consequence," he wrote.

"But ancient Chinese wisdom teaches that a journey of a thousand miles begins with a single step. Perhaps the way to start this particular journey is to pull our collective socks up, stop the chatter about recusal, and let the court we have -- for better or worse -- decide the case."

From Legal Newsline: Reach Jessica Karmasek by email at

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