Justice Elena Kagan In Health Care Case? GOP Senators Demand More Inquiry Into Recusal Option

WASHINGTON -- Senate Republicans have written a letter to Attorney General Eric Holder asking him to cooperate with their inquiry into whether Justice Elena Kagan should recuse herself from the landmark health care cases coming before the Supreme Court in 2012.

The letter, sent on Friday afternoon by Sens. Mitch McConnell (R-Ky.), Jon Kyl (R-Ariz.), Chuck Grassley (R-Iowa) and Mike Lee (R-Utah), asserts that the Department of Justice "has rejected all Congressional oversight requests for information about [Kagan's] role in the Obama Administration's defense" of the Patient Protection and Affordable Care Act. It argues that Kagan, while serving as solicitor general, had sufficient involvement with and investment in the passage of the law as to trigger two standards for judicial recusal under federal law.

A federal law requires that judges recuse themselves from cases when they have "served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case or controversy." Another provision of the law demands that federal judges disqualify themselves from participating in a case if their "impartiality might reasonably be questioned."

To illustrate their contentions, the senators cite emails that were sent to then-Solicitor General Kagan as well as one email in which she voiced her enthusiasm when Congress looked likely to pass the health care law. Conservative watchdog group Judicial Watch obtained the emails last week through a Freedom of Information Act request.

"I hear they have the votes, Larry!! Simply amazing," Kagan wrote to constitutional law scholar Laurence Tribe, then serving as a legal adviser to the Obama administration. The email's subject line was "fingers and toes crossed today!"

Other emails from then-Deputy Solicitor General Neal Katyal indicate that Kagan wanted the Office of the Solicitor General to be involved in crafting the administration's litigation strategy against the probable challenges to the law. And Katyal added Kagan to email threads discussing how to handle those legal challenges.

Republican calls for Kagan's recusal from the health care cases have been met with Democratic exhortations that Justice Clarence Thomas disqualify himself based on his wife's much-publicized activism against the law.

Since she joined the Court in October 2010, Kagan has recused herself from many cases based on her service as solicitor general, including more than two dozen in her first term. The decision to recuse is left to the individual justice. When the Court releases orders granting or denying review of particular cases, justices who have decided to recuse themselves from those cases are listed as not participating in the decision-making process.

The order granting the health care cases, released Monday, included no such note.

Comments

[CrawfishFestival]

04:26 PM on 11/28/2011

The letter, sent on Friday afternoon by Sens. Mitch McConnell (R-Ky.), Jon Kyl (R-Ariz.), Chuck Grassley (R-Iowa) and Mike Lee (R-Utah), asserts that the Department of Justice "has rejected all Congressional oversight requests for information about [Kagan's] role in the Obama Administration's defense" of the Patient Protection and Affordable Care Act. It argues that Kagan, while serving as solicitor general, had sufficient involvement with and investment in the passage of the law as to trigger two standards for judicial recusal under federal law.

********

During Elena Kagan's confirmation hearngs, Eric Holder as US AG came forward to assist Kagan to intentionally withhold her writings as Solicitor General under the Obama Administration -

although Eric Holder's position as US AG is to be in service to our country -

not to a party, a person or a president!!!

Kagan's writings as Solicitor General developing defenses for legal challenges to Obamacare = would have make her recusal mandatory on Obamacare.

That is why the corrupt machinations to obstruct Elena Kagan's documents - and the democratic party's bum-rush for her confirmation hearings to start - WITHOUT any of her writings as Solicitor General under the Obama Administration.

[foresure]

05:17 PM on 11/22/2011

taddles:

You are right. You provided the whole explanation.

[JohnnyKay]

08:34 AM on 11/21/2011

And yet Clarence Thomas still sits high atop his perch.

Go figure.

[CrawfishFestival]

04:28 PM on 11/28/2011

Clarence Thomas was not Solicitor General - under the Obama Administration - devising defenses for any legal challenges to Obamacare.

Elena Kagan was Solicitor General.

Big Difference - in Kagan being required to RECUSE herself.

[Prankster]

07:13 AM on 11/21/2011

OK, if you want to talk about Kagan, let's talk about Thomas and his bagger wife Ginny who has been fighting to kill healthcare reform. Like any of it makes a difference with bought and paid for Roberts, Scalia, Thomas and Alito leading the court! Give me a break!!!

[wkb2texans]

05:51 PM on 11/21/2011

Why am I not surprised that you can't see the difference between the two.

Let me help: The law spells out that a judge is to recuse themselves when they have served in the role of advisor, consultant, or otherwise played a key part in the passing of legislation that comes before them for judgement. Pretty simple.

There is NO such provision or requirement should a judge's spouse, or any other relative, do likewise. None. Nada. Zilch. Capiche?

[taddles]

02:31 AM on 11/22/2011

Well you're wrong, here's the relevant section of 28 USC 455:

(4) He knows that he, individually or as a fiduciary, or his
spouse or minor child residing in his household, has a financial
interest in the subject matter in controversy or in a party to
the proceeding, or any other interest that could be substantially
affected by the outcome of the proceeding;

His wife has been a paid lobbyist for the Heritage foundation who have been actively lobbying against ACA. Her employment and income is affected by the outcome of an ACA ruling.

There is no evidence that Kagan has had anything to do with ACA, in fact her Deputy has stated in the released emails the he is the point person for ACA and that he has never discussed anything about ACA with Kagan.

There is extensive evidence that Thomas' wife has been financially involved with one of the organizations that is actively fighting ACA. There is no evidence that Kagan has had anything to do with ACA.

[phatemu]

06:51 AM on 11/21/2011

The felonious Supreme Court 5-4 majority stole the election in 2000 for George W. Bush, allowed corporations to buy the government in the Citizens United decision and is now getting ready to shoot down health care reform.

[occupyhuffingtonpost]

08:02 AM on 11/21/2011

We can only hope ...

[most reasonable]

02:50 AM on 11/27/2011

Is stupidity a preexisting condition or is it an acquired disease brought upon by watching Fox News?

[CrawfishFestival]

04:33 PM on 11/28/2011

Beautiful, OccupyHuffingtonPost!

[wkb2texans]

05:53 PM on 11/21/2011

tua Domine percussit equus mortuus

[taddles]

02:34 AM on 11/22/2011

ignarus est non a rectum

[phatemu]

07:41 AM on 11/22/2011

rabidus Texan

[mariusvinchi]

06:46 AM on 11/21/2011

Here's the deal Senator(s)..You want Justice Kagan to recuse herself? Fine, provided Justices Thomas and Scalia also recuse themselves. Justice Kagan defended the ACA as Solicitor General. It was HER JOB regardless of her personal opinion on the issue. Justices Thomas and Scalia on the other hand, have illustrated a clear bias by attending a "private" event with the attorney challenging the Act. Only at THIS Supreme Court could this NOT be seen as
inappropriate! Can you say EX PARTE?

[wkb2texans]

05:55 PM on 11/21/2011

You need to brush up on the law ... no requirement to recuse because you attended a party of someone who favors a certain position. However, there is a requirement to do so, if you held a public office in where you provided support to a position in the form of consulting, advocating, or otherwise pushing for such legislation. That means Thomas and Scalia ... no. Kagan ... yes.

See how easy that was?

[mariusvinchi]

05:57 PM on 11/21/2011

Who said anything about law? We're talking about the appearance of impropriety. See how easy THAT was?

[taddles]

02:41 AM on 11/22/2011

Well unless you can prove Kagan provided any legal support for defending ACA, and so far Judicial Watch, after going through all the released emails, has only been able to show that Kagan was cc'd on the emails for the meeting dates.

[CrawfishFestival]

04:40 PM on 11/28/2011

@ mariusvinchi:

Kagan and Sotomayor eat at the same Chinese restaurant.

[AlphaDoc]

06:19 AM on 11/21/2011

>Another provision of the law demands that federal judges disqualify themselves from participating in a case if their "impartiality might reasonably be questioned."<

Which means Scalia, Alito, Thomas and Roberts should recuse themselves from just about every case.

[CrawfishFestival]

04:54 PM on 11/28/2011

yep, let's put all leftwing judges on the bench - and there would be no reason for FOUR BRANCHES of GOVERNMENT = Banana Republic.

[AlphaDoc]

01:15 PM on 12/01/2011

You're psychotic.

[theyedster]

01:00 AM on 11/21/2011

They ought to love her. She argued the "material support for terroism" case before the court for Obama. Might do well for folks to understand that neither he nor she is any kind of liberal.

[CrawfishFestival]

04:59 PM on 11/28/2011

Kagan also started the ISLAMIC studies at Harvard,

when Percy Sutton was approached to assist in getting Obama into Harvard - and to become the "president" of Harvard Law Review - at the request of Dr. Khalid al-Mansour, who was the Principal Advisor of Saudi Prince Alwaleed bin Talal.

[thebigbike]

11:22 PM on 11/20/2011

what? no discussion of Thomas's or Alito's and Scalia's recusal? oh that's right they are already bought and paid for. there's no question whatsoever as to their fealty, so it doesn't matter; we all know there's no "conflict of interest" because we have no expectation of their impartiality.

[neolow]

11:12 PM on 11/20/2011

GOP is more likely to lose Thomas than the Dems are likely to lose Kagan if conflict of interest becomes an issue.

[madisonlike60]

03:16 AM on 11/21/2011

You would think so...........

[AlphaDoc]

06:21 AM on 11/21/2011

Unfortunately, there's a big difference between the way it *should* work and the way it probably will.

[scottwarhar]

11:08 PM on 11/20/2011

The Teapublicans are now using their famous deflection defense to protect the fact that they refuse to investige the conflict of interest of their judicial allies.Same old republicans who have bought costumes so they can call themselve the new republicans.

[Americanium]

11:04 PM on 11/20/2011

I think Thomas, Scalia and Kagan should all recuse themselves

[Daniel Vaughn]

10:56 PM on 11/20/2011

She better 'Recuse' herself. This countries people can not afford this 'Idiotic' legislation. Where in the constitution does it say the Federal Government can 'make the citizens buy things they cannot afford. There is SO MUCH WRONG with this 'OBAMA' healthcare. #1 why doesn't this apply to our thieving politicians ! (I say thieving because they Vote themselves raises, give themselves 'Special retirement' ad Medical Coverage.) WHO GAVE THEM The power to do this ??I know I didn't. They should all start being a little more humble, and start acting as REPRESENTATIVES, and NOT Leaders..they are NOT qualified to be a leader. (What minomer that is) They are the merely a bunch of wannabe Lawyers.

[most reasonable]

03:00 AM on 11/27/2011

"Where in the constituti­on does it say the Federal Government can 'make the citizens buy things they cannot afford. "

Like you should be forced to pay your alimony?

[kemcha]

10:35 PM on 11/20/2011

Kagen isn't going to recuse herself. Not from this case, anyways, because she doesn't want the Health Care Law to be overturned. It just shows the duplicitous nature of the Democratic Party, of which she is a member of.

[madisonlike60]

03:19 AM on 11/21/2011

Since being appointed to the SCOTUS, Ms. Kagan has recused herself from cases 66 times. I am sure the correct procedure will be carried out.

[taddles]

02:47 AM on 11/22/2011

Well she recused herself from 80% of the cases her first year on the bench, so her record of recusing for cases she was involved in is impeccable.

Kagan is not likely to recuse herself from ACA because she had nothing to do with it. Her deputy was solely in charge of all ACA issues as the released emails demonstrate.

This is simple, the Obama administration intentionally kept Kagan out of the loop on ACA because they were planning to nominate her to the bench and they knew that eventually ACA would make it to the court (not rocket science). That's also why they allowed all of her emails to be released even thought there is ample precedent for not doing so. The emails prove that her Deputy was the point with ACA and that Kagan had nothing to do with it.

[CrawfishFestival]

06:39 PM on 11/28/2011

@ taddles:

nice work for a brown shirt.

However, it was Elena Kagan's "responsibility" as Solicitor General - to devise and develop defenses for legal challenges to Obamacare.

According to yr analogy, the obama Administration would not have had her as Solicitor General - if they were going to nominate Kagan - especially since the Obama Administration "knew" Obamacare would have legal challenges in court.

The fact that The White House and Eric Holder as US AG conspired to assist Elen Kagan to withhold ALL her writings as Solicitor General under the Obama Administration - that were documents required for her confirmation hearings as Obama's nominee to US Supreme Court - indicates THERE IS SOMETHING TO HIDE.

Also according to yr analogy, Kagan is pulling the same thing over Obamacare - that Eric Holder as US AG is pulling over Operation Fast and Furious = knew nothing about it = BULLSHYT.

[David Silvey]

09:45 PM on 11/20/2011

It should be Clarance Thomas who recluses himself. Of course he won't and neither should Kagan

[CrawfishFestival]

06:42 PM on 11/28/2011

@ David -

keep showing everyone the twisted-thinking of liberals......

it will be the best way for a Republican to acquire the White House in 2012.

Thanks -

Anybody But Obama - (ABO) - 2012.