Virginia AG: Justice Kagan Won’t Recuse Herself Because She’s Already Ruled On Obamacare

There are some extremely valid questions being asked about Obama-appointed Supreme Court Justice Elena Kagan and her worn on defending Obamacare for the Obama administration before she was nominated by the President. In fact, 49 members of the House of Representatives have called for an investigation into Kagan’s involvement in the legal defense of Obamacare.

But Virginia Attorney General Ken Cuccinelli, who is one of the leaders in the lawsuits brought by the states to challenge Obamacare, says that Justice Kagan isn’t likely to recuse herself both because precedent leaves that decision up to the individual Justices and Kagan hasn’t recused herself from ruling on other aspects of Obamacare.

From Cuccinelli’s interview with Scott Hennen:


Hennen: This story about 49 members in the House of Representatives including the chairman of the House oversight committee, the chairman of the Republican policy committee and they are both presidential candidates, that are pointing to evidence that they say contradictory to Supreme Court Justice Elena Kagan confirmation testimony and calling to the house judiciary committee to investigate that matter. This will alternately go to the Supreme Court to decide and the Elena Kagan and do we now know had a roll in this. What you think, number one for an investigation, and number two about whether not they have any role in deciding this case in your view?

Cucinelli: Will you know it’s a pretty dicey matter to be tossing and justice around while there is a case as the rolling through and that’s what you’re hitting her on and of course the house had no role in approving any of these justices so they may have somewhat of a different perspective on all of it. But the statute that governs recusal is as I recall is each justice decides to recusal for themselves under this statute. So, that has been decided as far as we are concerned because she voted in Virginia’s case to deny us our request, as they all did it was 9 to 0, would you buy mean skip the appellate court and go straight to the Supreme Court. So if you were going to participate you weren’t going to participate in anything. Is where a justice would say it’s a minor part of the case it’s all in nothing, and she’s already demonstrated that she’s going to participate.

Hennen: But is that worrisome for you knowing what we know about her role in crafting the policy?

Cucinelli: I’m not prepared to make any conclusions about what her role was but I know she was the solicitor general, and I know that some things went to the opposite but it’s really for others, other than me to undertake an investigation like that. I’m not going to do that. Which in the carrier case forward and argue it is best as we can, we would love to get nine votes but I’m over it little bit more realistic than that, it’s going to be hard to do. But we still need to get five That’s the target number. I’d love to get them all but we’ve got to get five. Whether or not you may or may not have one justice that may vote no, doesn’t give this to five. So we still need that.

Sadly, even though Kagan undoubtedly has a major conflict of interest in ruling on this case, due to the almsot unchecked power of the Supreme Court and utter lack of oversight, there’s not much we can do about it.

Rob Port is the editor of In 2011 he was a finalist for the Watch Dog of the Year from the Sam Adams Alliance and winner of the Americans For Prosperity Award for Online Excellence. In 2013 the Washington Post named SAB one of the nation's top state-based political blogs, and named Rob one of the state's best political reporters.

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  • DerekG

    That people are not up in arms over this is evidence that this country has fallen to the idiocracy.

  • WOOF

    There are 240 Republicans in the House and all they can get is 49?
    Must be weak tea.
    Are the rest about to be indicted?

  • John

    It’s not tea WOOF, it’s electric kool-aid.

  • spud

    So Kennedy will have the deciding vote what a shocker

  • Vlad Taltos

    And yet Justice Thomas’ wife makes her living opposing “Obamacare”. 

    Where is your outrage?

    • robert108

      Mrs. Thomas isn’t a  SCOTUS judge, so it’s a false equivalence.  Furthermore, obamacare is unConstitutional, wrong, and unAmerican, and all real Americans should oppose it.

      • Vlad Taltos

        A spouses income is the same as yours.  Justice Thomas is making money opposing Obamacare.

        This is an actual conflict of interest.

        In the federal law that the 49 Congressman cited asking Justice Kagan to recuse herself it addresses the income of a spouse.  This was conveniently ignored.

    • Neiman

      Kagan was personally involved in creating and promoting Obamacare, in the Thomas situation it is his wife – he is not personally involved. Get a clue!

      • Vlad Taltos

        When your wife earns money is it unrelated to you?
        Is it unrelated to your children?
        Do you have no inhtetest in it?

        However, by law it is 50% yours.  All the money she has earned opposing “Obamacare” is 1/2 his.  This is an actual conflict of interest.

        • Neiman

          A typical liberal you are playing semantic gymnastics, twisting things out of all proportion.

          If you cannot see a clear difference between direct advocacy and no direct activity, the there is no hope of reasoning with you. Would you suggest the spouse of a Justice not be allowed any outside income or that the Justice excuse himself/herself every time any case appears with the most remote connection? On the other hand, would you say Kagan’s direct activity does compromise her position?

          • Vlad Taltos

            I believe direct advocacy means you will actually vote what you believe.  Isn’t that what we want? A justice who votes what they believe the law is?

            Outside monetary interest mean you may vote your own financial interest.  That is much more serious and much more damaging to democracy.

            A justices spouse may earn any income they want, but when a case comes before the Supreme Court involving that interest than the justice MUST recuse themselves.

          • robert108

            SCOTUS is supposed to vote according to what the Constitution says…period.

            “A justices spouse may earn any income they want, but when a case comes
            before the Supreme Court involving that interest than the justice MUST
            recuse themselves.”

            Only if you can prove beyond reasonable doubt that the spouse has the power to alter what the Justice does.  Otherwise, you have no case.  Your assumptions are insufficient to prove conflict.

          • Vlad Taltos

            Only if you want to ignore the law.

          • mickey_moussaoui

            There is “law” and then there is “liberal law”. One is real and one is not.

  • BillyP

    There is no way in hell Justice Kagan will recuse herself.  For one thing, she’s a giggle-sissy liberal and they are going to need every single vote they can get…and results always matter more to liberals than character and integrity.  (You can probably say the same about conservatives, as well.) 
    That’s one reason you are seeing so much coverage in the media about Justice Thomas and his wife’s alleged “ties” to insurance companies.  They media are trying to set up a situation where…if Kagan gets shamed into recusing herself…they can push for Thomas to have to do so, as well.  Also, we’re getting a lot of nonsense now about how Kagan shouldn’t have to recuse herself because “she’s already ruled on Obamacare”…although it has ALWAYS been expected that a judge who has previously helped draft legislation or ruled on it in other cases….would recuse him or herself.

  • Cherz1967

    Is it my imagination or dose Justice Kagen look like Chris Christys’ twin?

    • awfulorv

      Or Robert Rizzo city manager of Bell Calif. after losing 200 lbs.

  • Bat One

    It’s telling that the best our resident leftwing legal beagle can come up with in defense of Kagan’s obvious  PERSONAL, legal conflict is to try to rationalize Kagan by squawking about Justice Thomas.  Too much the partisan hack to directly acknowledge Kagan’s conflict of interest – one that would be obvious to most any high school graduate, never mind someone with a law degree – Vlad offers instead the obfuscatory “your guy did it too,” which is a non-defense that is music to the ears of adolescent progressives, but hardly passes the smell test among adults.

    Is that the best you can come up with, counselor?  I certainly hope not, ’cause I know self-admitted ambulance chasers who ‘d be too embarrassed to stoop that low!