If you have listened to any of the media coverage since the Supreme Court officially decided to hear constitutional challenges to the Affordable Care Act (i.e. Obamacare), you have undoubtly heard rumbles about whether or not Justice Elena Kagan should recuse herself from hearing the case.
Why, might you ask, would Justice Kagan even think about recusing herself? While the Act was being heavily debated in Congress, she was the Solicitor General of the United States, which basically made her the chief litigator for the United States. I won’t bore you with the Federal Law on the issue. The gist of the Judicial Code of Conduct for a Federal Judge is that a Judge should not hear a case on which he or she worked, advised, or has previously expressed a strong opinion on.
Allegedly, there exist emails that Kagan was included on regarding the constitutionality of the Act. There are also allegedly emails from her to outside parties expressing opinions on the pending issues. The reason these emails are alleged is because the Justice Department has declined to release most of these emails to the public. However, what is not alleged and is instead fact is her staff was deeply involved with the Obama administration in the interworking’s and passing of this law.
This has, of course, become a large political battle. Most Democrats are calling for her to stay, while most Republicans are calling for her to step down. I do not think this is a political issue. I think it is a moral issue. We hold our Supreme Court Judges to the highest moral standard in the land. We expect them to be ethical and fair. If under any interpretation of the words “worked” or “advised,” she was involved in this case while she was Solicitor General, she should step down. It is the right thing to do.
The facts being presented in the Media sure do lead to the assumption that she did work, or at the very least advised on the case. Therefore, if the facts being reported are true, I don’t see how she couldn’t step down.