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.

Elena Kagan and Obama Transparency

Of all Obama's broken campaign promises, perhaps the biggest crock of all is TRANSPARENCY.

No.

The biggest crock might be Obama's promise to do away with Washington politics as usual.

The two are related. I guess they can be merged into one big fat broken promise or, if you wish, lie.

Even the possibility that Obama would claim executive privilege to keep Elena Kagan's extremist liberal writings under wraps runs counter to his pledge to let the American public be a part of their government and be able to see its workings for themselves.

These documents aren't a matter of national security. They aren't the sort of thing that Sandy Berger would stuff in his pants and socks and steal from the National Archives. Kagan's papers would allow Americans to learn about the individual Obama has nominated to be on the U.S. Supreme Court.

It appears that Obama doesn't want us to know. He wants to prevent us from learning about her. Not very transparent.

From Kagan Watch:

In a letter to Sen. Jeff Sessions, the ranking Republican on the Judiciary Committee Republican, Robert Bauer, counsel to Obama, implied the president may use executive privilege to hide some memos Elena Kagan wrote when she served in the Clinton White House.

“President Obama does not intend to assert executive privilege over any of the documents requested by the Committee,” Bauer writes.

“Of course, President Clinton also has an interest in these records, and his representative is reviewing them now,” he adds.

The Clinton library has more than 150,000 documents related to Elena Kagan. This is one of the few sources we have to know what Kagan thinks on many issues.

Come on.

Where's the transparency, Barack?

I know Paul McCartney thinks you're doing a great job, but this transparency thing is a real problem.
______________

Here's the letter.

Elena Kagan: Pro-Abortion

Of course, Elena Kagan is staunchly pro-abortion.

Obama picked her.

From Aaron Klein:

Elena Kagan, President Obama's pick for the U.S. Supreme Court, contributed financially to and was a listed member of an organization whose stated goal is to promote access to abortion services and blocks attempts to limit female "reproductive rights."

Kagan's listed herself as a member in the National Partnership for Women and Families, or NPWF, which seeks "to increase women's access to ... reproductive health services and block attempts to limit reproductive rights ... and to give every woman access to ... abortion services."

...Kagan has no judicial record to point to her beliefs on key issues, but in 1991 she criticized a Supreme Court decision allowing the government to ban the use federal money for abortion.

Kagan termed the ban "government hostility toward some ideas."

WND reported last week how Kagan argued government funds must not be granted to any religious organizations seeking to prevent teen pregnancies, since such groups may "inject" religious teaching.

However, WND has learned that when questioned during Senate hearings earlier this year about her argument – made in a 1987 legal brief – Kagan reversed course and called her own memo "the dumbest thing I ever read."

What's dumb is to pretend that Kagan doesn't share Obama's Leftist agenda and she wouldn't serve as Obama's rubberstamp when it comes to promoting and upholding it.

Kagan and Military Recruiters

Elena Kagan's hostility toward the U.S. military is undeniable.

Her record is clear.

From Ben Conery, the Washington Times:

At her first opportunity to do so, Supreme Court nominee Elena Kagan banned military recruiters from campus during her tenure as dean of Harvard Law School, in protest over the Pentagon's policies on gays.

Ms. Kagan's defenders insist the nominee was simply following the law as it worked its way through the courts, but Ms. Kagan banned the recruiters as soon as an appeals court in 2004 struck down a law tying federal funding to allowing military recruiting on campus. She acted despite the court's order that the ruling not take effect until the Supreme Court reviewed the case.

The episode offers one of the few insights into Ms. Kagan's thinking on any issue and promises to be a focal point of what is shaping up to be a relatively low-key confirmation battle to replace retiring Justice John Paul Stevens.

"I think it's not a small matter, and when she was a dean of Harvard we had 900 people killed in Iraq and Afghanistan and they were not permitted to come on the Harvard campus to recruit JAG officers because she believed that President Clinton's 'don't ask, don't tell' policy was wrong," Sen. Jeff Sessions, an Alabama Republican who will lead his party's questioning during Ms. Kagan's confirmation hearing, said Tuesday during an interview on Fox News.

The Harvard recruiting decision also has opened Ms. Kagan to criticism from some conservative pro-military voices.

Elaine Donnelly of the Center for Military Readiness this week came out against the nomination, focusing squarely on the Harvard Law School episode.

"It is unfortunate that President Obama has chosen to replace the only military veteran on the Supreme Court with extensive wartime experience with a nominee whose only significant record indicates deliberate hostility and opposition to laws protecting the culture and best interests of the American military," she said.

Harvard Law School grudgingly allowed military recruiters to use its career services offices because of a law that cut off federal funding for universities that banned recruiters. When the lower court overturned the law, Ms. Kagan acted immediately.

"I believe the military's discriminatory employment policy is deeply wrong — both unwise and unjust," Ms. Kagan wrote in a 2005 e-mail to faculty and students announcing the ban.

Robert Clark, who preceded Ms. Kagan as dean of Harvard Law School, noted in a Wall Street Journal Op-Ed Tuesday that he had instituted the compromise recruitment arrangement at the school the year before Ms. Kagan took over in 2003.

"Outside observers may disagree with the moral and policy judgments made by those at Harvard Law School. But it would be very wrong to portray Elena Kagan as hostile to the U.S. military," he wrote.

Ms. Kagan relented a few months later when the federal government threatened to pull Harvard's public funding. The Supreme Court subsequently overturned the lower court and upheld what is known as the "Solomon Amendment," the law that tied federal funding to allowing military recruiters on campus.

...With a thin paper trail with which to evaluate her views, the military recruitment issue has become a focal point.

The White House launched a full-throated defense of Ms. Kagan's handling of the situation Tuesday, a day after President Obama formally named her as his replacement for 90-year-old Justice Stevens, who is retiring after 35 years on the bench.

The timeline is what it is.

Kagan's actions and statemenets are what they are.

Kagan is Not Gay

Here's important news:

Elena Kagan has been outed by friends. She is not gay.

That's too bad. I really wanted her to be gay. Darn!

From Politico:

Elena Kagan is not a lesbian, one of her best friends told POLITICO Tuesday night, responding to persistent rumors and innuendo about the Supreme Court nominee’s personal life.

“I’ve known her for most of her adult life and I know she’s straight,” said Sarah Walzer, Kagan’s roommate in law school and a close friend since then. “She dated men when we were in law school, we talked about men — who in our class was cute, who she would like to date, all of those things. She definitely dated when she was in D.C. after law school, when she was in Chicago – and she just didn’t find the right person.”

Walzer, half amused and half appalled to be discussing her friend’s sexual orientation, agreed to be interviewed after Kagan’s supporters decided they should tactfully put an end to the rumor, which White House officials had already tried to squelch in background interviews with reporters. She said she decided to talk to POLITICO because the discussion of Kagan’s personal life has become a “distraction.”

“It’s taking away from substantive discussion of the issues from a really substantive person who deserves to be given the opportunity to address the substantive issues,” she said.

Another friend, former New York Governor Eliot Spitzer, a member of Kagan’s social circle at Princeton University, wanted to make the same point as Walzer. “I did not go out with her, but other guys did,” he said in an email Tuesday night. “I don't think it is my place to say more.”

The rumor about Kagan has circulated for months on gay blogs and became a matter of controversy when it was cited as fact by a conservative blogger on the website of CBS News, drawing a sharp White House rebuttal. It has, since, been a source of particular fascination in some socially conservative circles and particularly among gay and lesbian political observers, some of whom objected volubly Tuesday to a Wall Street Journal cover image of Kagan playing softball, which they perceived as a jab at a stereotype of lesbians.

...The rumors that Kagan is gay, Walzer said, were current before she became a public figure, and a source of frustration to Kagan and her friends – who were frustrated by their persistence, but worried that denying them could imply some anti-gay prejudice.

“There is this assumption that people make at a single point about women who get to their 40s or 50s and never marry that it must be because they’re gay,” Walzer said. “It’s just usually that they don’t get nominated for the Supreme Court and have everybody talking about them, so nobody really cares.”

So Kagan is just a single woman, a straight single woman.

Oh well.

So much for sexual orientation diversity on the Supreme Court.

I mean, it's the 21st century. Nine straight people on the Court? That's not right.

How can the law be interpreted adequately without the input of a lesbian?

Elena Kagan, Joe Biden, and Anti-Military Bias

On Good Morning America today, Joe Biden declared that Elena Kagan was right when she opposed military recruiters at Harvard.

I'd like to hear Obama comment in detail on Kagan's treatment of the military.

Video.


Read "Kagan kicked out campus recruiters at first chance."

Eliot Spitzer and Elena Kagan

I don't know why the lib media tapped Eliot Spitzer to promote Elena Kagan.

Eliot Spitzer?

The former governor of New York who resigned in disgrace after a sordid prostitution scandal?

Why would they trot him out?

Who cares about a spaghetti eating contest?

Oh, by all means, put Kagan on the Supreme Court!

The fact is character matters. Spitzer is not a worthy endorsement. He's an embarrassment.

Kagan's Record: 'Lefty, Dullish, Short'

The Washington Times has come out against the nomination of Elena Kagan, calling her record "lefty, dullish and short."

Read the editorial.

When President George H.W. Bush nominated New Hampshire Judge David Souter for the U.S. Supreme Court, columnist George F. Will famously quipped that the nominee's thin, inscrutable record made him "an empty Souter." President Obama's high-court nominee, Elena Kagan, boasts an equally meager paper trail, but there are enough signs of extreme ideological leftism to suggest that the Senate should move cautiously in considering her confirmation.

Ms. Kagan certainly brings a number of admirable qualities to the table, yet she is far from the moderate her supporters claim her to be. During her student days at Princeton, for example, she wrote a column expressing the hope that "a new, revitalized, perhaps more leftist left will once again come to the fore." In 1993, she explained that it is a "thing of glory" for the Supreme Court to see its primary mission as "show[ing] a special solicitude for the despised and disadvantaged." She strongly opposed the federal Defense of Marriage Act, which passed the Senate overwhelmingly with the support of liberals like then-Sen. Joseph R. Biden Jr., Delaware Democrat.

As dean of the Harvard Law School, Ms. Kagan banned military judge advocate general recruiters from campus in protest of the military's "Don't Ask, Don't Tell" rules on open homosexuality. She called the carefully crafted rules "a moral injustice of the first order" and joined a brief asking the Supreme Court to overturn a law requiring campuses to be open to military recruiters - a position the high court unanimously rejected.

The incident has even troubled liberals such as former New Republic editor Peter Beinart, who wrote in the Daily Beast that "barring the military from campus is a bit like barring the president or even the flag. It's more than a statement of criticism; it's a statement of national estrangement."

I find her hostility toward our military to be particularly disturbing.

She's a little too "Bill Ayers" for me.

Then again, so is Obama.

...She has never served as a judge at any level. Through her long academic career, she has written only three law review articles, a few short essays and two brief book reviews. University of Colorado at Boulder law professor Paul Campos has described these works as "lifeless, dull, and eminently forgettable."

Thirty-one senators are on record voting against Ms. Kagan's confirmation as solicitor general. The standards for the Supreme Court obviously should be higher than for her current position. There is good reason for all 31, and more, to take at least a skeptical view of Ms. Kagan's suitability for the highest court in the land.

One has to ask: Why Kagan?

Obama certainly didn't choose her because of her qualifications.

Then again, why did the majority of Americans choose Obama to be president? It wasn't because of his experience.

Obama obviously finds Kagan's liberal mindset to be appealing. They're on the same Leftist page.

He wants to nominate another woman. God forbid he should choose some white guy.

Thirty-one senators were against Kagan serving as solicitor general. Why would they approve of giving her a lifetime position as a Supreme Court justice?

That would be very odd.

Kagan's Questionnaire for Solicitor General

From the Wall Street Journal:

When Elena Kagan was nominated to be President Obama's solicitor general in January 2009, she filled out a 51-page questionnaire for the Senate Judiciary Committee that's similar to the one she will complete as a nominee for the Supreme Court. It includes questions about her net worth, employment history, published writing and work as a lawyer.

Here's the full questionnaire and Kagan's responses, all 51 pages.