Kagan Recusal - ObamaCare

CNSNews is doing what the mainstream media are failing to do - holding the Obama administration accountable and questioning its allies. The outlet reports on stories that the Leftist media prefer to bury or ignore completely.

For example, there are serious concerns regarding Justice Elena Kagan's impartiality when it comes to hearing the case on ObamaCare.

Sessions Demands Written Testimony from Holder on Kagan and Obamacare

Sen. Jeff Sessions of Alabama, a senior Republican on the Senate Judiciary Committee, is demanding that Attorney General Eric Holder provide the committee with written testimony related to Supreme Court Justice Elena Kagan’s possible involvement in President Barack Obama’s health-care legislation or litigation that was filed against that legislation during the time she was solicitor general.

A federal law, 28 USC 455, says that a Supreme Court justice must recuse from “any proceeding in which his impartiality might reasonably be questioned” or anytime he has “expressed an opinion concerning the merits of the particular case in controversy” while he “served in governmental employment.”

During Kagan’s 2010 confirmation process, Sen. Sessions and other Judiciary Committee Republicans asked Kagan two questions in writing about whether she had ever been asked or had ever offered her views “regarding the underlying legal or constitutional issues related to any proposed health care legislation” or “potential litigation resulting from such legislation?” Kagan’s response to both questions was: “No.”

Sessions’ call for Holder’s written testimony follows up not only on Holder’s appearance at a Judiciary Committee oversight hearing last week but also on sets of internal DOJ emails regarding Kagan and the health care and recusal issues that the Justice Department released on March 15 and Nov. 9 in response to lawsuits filed by the Media Research Center, the parent organization of CNSNews.com, and Judicial Watch. The lawsuits were based on Freedom of Information Act requests that CNSNews.com and Judicial Watch had filed with DOJ.

...Among the emails that DOJ released to CNSNews.com and Judicial Watch are a Jan. 8, 2010 email chain in which then-Solicitor General Elena Kagan assigned her top deputy, Neal Katyal, to handle the anticipated legal challenges to Obamacare, which had passed the Senate two weeks before. (See page 3 of this PDF.) That was four months before President Barack Obama nominated Kagan to the Supreme Court and she recused herself as solicitor general. In the meantime, Obamacare was enacted and lawsuits were filed against it. Katyal--the lawyer who Kagan had originally assigned to the issue--eventually argued the cases in multiple appeals courts.

In other Jan. 8, 2010 emails to an individual in the associate attorney general's office, Katyal indicated his own desire to "crush" legal challenges to the health care law (see page 56 of this PDF), and said: "Elena would definitely like OSG [Office of Solicitor General] to be involved in this set of issues. I will handle this myself, along with an Assistant from my office [name redacted] and we will bring Elena in as needed." (See page 57 of this PDF.)

The emails released last week include an exchange between Kagan and Harvard Law Prof. Lawrence Tribe, who was working for the Justice Department in 2010. The exchange took place on March 21 of that year, the day the Patient Protection and Affordable Care Act passed the House of Representatives. The exchange shows Kagan expressing apparent enthusiasm for the imminent passage of the legislation that she would now judge as a Supreme Court justice were she not to recuse herself from the case.

“I hear they have the votes, Larry!!” Kagan wrote. “Simply amazing.”

“I am deeply disturbed by these developments and believe that the Justice Department should have provided these documents to the Senate Judiciary Committee during Justice Kagan’s confirmation hearing,” Sessions told Holder in the request for written testimony. “The Department’s failure to provide this information to Congress and to comply with FOIA requests, as well as your apparent inattention to these matters, is unacceptable. I have set forth the substance of the aforementioned emails below. Please review them and provide answers to the questions that follow.”

...Sessions put seven specific questions to Holder that he wants Holder to answer for the committee in written testimony as a continuation of last week's oversight hearing. The questions revolve around Holder’s awareness of Kagan’s involvement in any discussion or treatment of the health-care legislation or litigation challenging it.

Kagan is a partisan hack. It appears that's particularly the case on the issue of ObamaCare.

The American people must have confidence that she is fit to participate when the Court takes up ObamaCare.

If recusal is warranted, Kagan must show the integrity and exhibit the decency to do so. Anything less makes a mockery of the Supreme Court.