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

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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