Recusal Issue Fading as Health Care Arguments Approach

By Tony Mauro

Klayman has since filed a motion for reconsideration citing another reason why he thinks Kagan should recuse. In Justice Department emails that were released last year, Deputy Solicitor General Edwin Kneedler said he had “several times” discussed with Kagan the pension rights case of Golden Gate Restaurant Association v. City and County of San Francisco. The government filed a brief in the case in May 2010, under the name of then-deputy SG Neal Katyal. The brief discusses how the new health care law could affect a San Francisco ordinance that was at issue in the case.

Though that brief was reported on in early stories about the recusal issue, Fox News raised it again in a Jan. 26 story that quotes Heritage Foundation Senior Legal Fellow Hans von Spakovsky as saying her participation in that brief should force her recusal. It also quotes Elizabeth Wydra of the Constitutional Accountability Center as saying the case was unrelated to the current challenges and that “The arguments are, frankly, looking a little desperate.”