The recent release of internal Solicitor General’s Office documents relating to how then-Solicitor General Elena Kagan tried to steer clear of any involvement in the debate over the legality of the federal health care reform law seems to raise one important question of timing — and luck.
That’s because the documents obtained by conservative news site www.cnsnews.com show how the SG’s office handled another case, a challenge to San Francisco’s universal health care law called Golden Gate Restaurant Association v. San Francisco (a case your blogger covered in his role as SCOTUS reporter for the Los Angeles Daily Journal).
The SG’s office was asked by the Supreme Court in October 2009 to share its views on whether the justices should hear that case, but it seems that Kagan managed not to get involved (as she did over preliminary discussions about how the administration should defend the health care reform law). The timing question that arises is: what would have happened if the San Francisco case had come up earlier in her tenure? If it had come to Kagan’s attention before she had an inkling Justice John Paul Stevens was going to resign, would she then have taken a more active role and — crucially — now face even more questions than she does already about whether to recuse if/when the constitutionality of the federal health care law reaches the high court? Or would the SG’s office have just delayed filing its brief indefinitely? It also makes one wonder how far in advance Kagan knew that there would be a vacancy on the court.
Ultimately, it all seems to have worked out perfectly for Kagan. Her best defense when asked about whether she had any involvement in the San Francisco case is the fact that the SG’s brief, which asked the court not to take the case in part because of the enactment of the federal law, was filed after she was nominated. Her name is nowhere to be seen.
One final point: Vince Chhabria, the deputy San Francisco City Attorney who handled the case for the city, tells your blogger that he only ever had contact with Deputy SG Edwin Kneedler. “That’s as high as it went our end,” he says.