Kagan is No Rehnquist

Written by Lloyd Green on Tuesday November 15, 2011

Elena Kagan meet Bill Rehnquist. That Bill Rehnquist.

Like Kagan, Rehnquist was once young, smart, and ambitious. Like Kagan, Rehnquist served as a political appointee at the Department of Justice. And like Kagan, Rehnquist was once an Associate Justice of the United States Supreme Court.

But Kagan and Rehnquist have one more thing in common. And it is a big one. As a Supreme Court Justice, each was asked to pass upon the assertions of constitutionality invoked by their former bosses.

In the case of Justice Rehnquist, the Supreme Court was confronted by Richard Nixon's claim of Executive Privilege in connection with the Watergate Tapes. Rehnquist had served in the Nixon Justice Department under John Mitchell. And, Nixon had referred to him as “Renchberg” in a taped conversation. Rehnquist was on the Team.

However, faced with Nixon’s appeal from a lower federal court order directing Nixon to hand over the Watergate Tapes, Rehnquist recused himself and allowed the Supreme Court to decide the case without his input or vote.

In the end, the Court rejected 8-0 Nixon's claim of Executive Privilege. Nixon went on to resign after the House Judiciary Committee subsequently voted to impeach Nixon.

Fast forward to 2010. Kagan, Obama’s Solicitor General -- the government’s lawyer before the Supreme Court -- was emailing away with her former Harvard Law School colleague Lawrence Tribe hours before the Senate was to vote on Obamacare. Nothing wrong with that.

Kagan expressed her wonderment and glee over the White House securing the votes needed to make Obamacare law. According to newly released emails, Kagan wrote, “I hear they have the votes, Larry!! Simply amazing ...” Previously, Kagan had contributed $4,600 to Obama’s 2008 presidential campaign.

Clearly, Kagan is a political partisan like Rehnquist. But, Kagan may have a different view of her recusal obligations.

During her confirmation hearings, Kagan dodged the issue of whether she would recuse herself if the Supreme Court were called to pass upon the constitutionality of Obamacare. Kagan demurred and said that she was involved in meetings where Obamacare was discussed, but was not involved in the government’s actual filings.Kagan's allies have since gone to pains to claim that Kagan had "walled herself off" from formal government consideration of challenges to Obmacare.

What Kagan did not disclose to the Senate was her email and cheerleading with Laurence Tribe.

There is no indication that Kagan recused herself from the Supreme Court’s vote to hear the legal challenge to Obamacare.

If not, we can say of Kagan: when it comes to scrupulous impartiality, she is no William Rehnquist.