Kagan Defended ObamaCare As Solicitor General - Case closed on recusal.

Human Events ^ | 01/27/2012 | John Hayward

[neverdem]

Until now, those who say Supreme Court Justice Elena Kagan shouldn’t recuse herself from the upcoming ObmaCare case, even though federal code clearly requires her to do so, have argued that even though she was President Obama’s Solicitor General, she was kept hermetically sealed away from anything pertaining to ObamaCare. This was supposedly done even though the Supreme Court seat she would later occupy wasn’t vacant yet – a forward-looking move designed to keep her viable for both the Court seat, and the ObamaCare thumbs-up desperately needed by the President in a few weeks.

That excuse always seemed preposterous. Solicitor General Kagan was kept totally out of the loop on the most important legal defense her Administration would ever mount, in order to keep her unsullied for the chance that she might sit on one of the most important cases the Supreme Court would ever hear?

Well, the Kagan firewall just went up in smoke. Fox News reports:

With just weeks until the U.S. Supreme Court considers the constitutionality of President Obama's health care law, there are new calls for Justice Elena Kagan to recuse herself from the case.

Her critics point to a 2010 case regarding a San Francisco health measure, in which then-Solicitor General Kagan's office filed an amicus brief touting the newly passed health care law.

In May 2010, after Kagan had been nominated to the nation's highest court, Principal Deputy Solicitor General Neal Katyal sent her a memo outlining the cases in which she had "substantially participated." Kaytal specifically referenced the Golden Gate case, noting that it had been "discussed with Elena several times."

That's enough to convince Heritage Foundation Senior Legal Fellow Hans von Spakovsky that Kagan shouldn't take part in the current health care case before the high court.

"I don't see how any ethical lawyer adhering to professional codes of conduct could not consider that they need to recuse themselves from this case," he said.

(Emphases mine.) And we all know that Obama appointees hold themselves to the highest ethical standards, don’t we?

Kagan defenders have been hilariously reduced to hair-splitting about how the “issues” in the San Francisco case were so unique that she’s still in the clear to rule on ObamaCare in general. We really have degenerated into a banana republic if those arguments are taken seriously.

U.S. code could not be more clear on this issue. The third condition set forth for judicial disqualification reads, in its entirety: “Where he has 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 in controversy.”

Until today, Kagan’s defenders pretended to understand what those words meant. That’s why they so desperately insisted that she never went anywhere near ObamaCare during her Solicitor General days. That argument was absurd, but everyone trying to keep her on the case at the Supreme Court understood it was vital.

There are emails showing Kagan celebrating passage of ObamaCare during her time with the Administration, but that’s different, even though many observers find it unseemly. It skirts the edge of the prohibition against “personal bias” on the part of judges, but the law is less concerned with appearances than with concrete relationships that compromise judicial impartiality, and ruin public trust in the judiciary. Any reasonable person can understand the absurdity of allowing someone who actively argued one side of a case to sit in judgment upon it.

Elena Kagan evidently understands the standards for disqualification, because in December she recused herself from the Supreme Court’s hearing of the Justice Department challenge to Arizona’s immigration law, precisely because she was Solicitor General when the DOJ suit was filed.

Game, set, match. There’s nothing else for any ethical jurist or lawyer to discuss. Kagan must not rule on ObamaCare.

[Walkingfeather]

Here is the bigger question. Has she told her fellow jurists the same lie. If so will they see this a as breach of ethics and sanction her?

[Hulka]

“. . .and Kagan’s female. . .”

Are you sure. . . .?

[Walkingfeather]

Did she state before her confirmation hearing that she had nothing to do with the health care law???

[Reily]

Who will sanction her?
I don't think the other members of the SCOTUS have any real jurisdiction over each other. I think the Chief Justices sole duty is to assign who writes the opinions.
Certain positions in the USG require a sense of honor in the participants, that characteristic is lacking in the left. Remember in their minds no non-Marxist (or socialist) institution or custom has legitimacy. Therefore rules mores or customs that support those institutions need not be followed.

If she does not recuse herself from the Obamacare hearings she must be impeached and removed from the bench. If this is not done there no longer will ba any such thing as judicial conflict of interest. We should have a GOP Congress, the questions is will they have the balls to do it.

[vrwconspiracist]

It’s a shame she’s not honorable enough to put this question away now. That said, if she hasn’t recused by the time the case is heard, Plaintiff’s counsel and others should submit Kagan’s amicus brief into the Supreme Course record and reference it in their arguments. If she’s on the bench when Plaintiff’s counsel makes oral arguments, counsel’s first words should specifically reference her and point to some argument or parallel to the current case in her amicus brief (i.e. as Solicitor General Kagan argued in her amicus brief dated...). If she does not recuse - file bar complaints and go after her law license.

This business reeks. That said, if she is on the bench at oral argument and is in so many words called out by plaintiff’s counsel, then the court does not strike down the law on multiple grounds, the afterhocks might well end the Obama administration even if it may have otherwise survived. The alternative in that instance, which would be the demise of the courts as a third branch of government and check against excesses of the other two branches, is too terrible to imagine.

[M-cubed]

Where he has 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 in controversy.” <<<

I see the loop hole!...2nd word!...it says “he”

Gonna need a TSA employee with latex gloves to make a ruling...

[M-cubed]

Where he has 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 in controversy.” <<<

I see the loop hole!...2nd word!...it says “he”

Gonna need a TSA employee with latex gloves to make a ruling...

[neverdem]

The Decline of Violence - Neuroscientist Steven Pinker on the triumph of peace and prosperity over death and destruction

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Some noteworthy articles about politics, foreign or military affairs, IMHO, FReepmail me if you want on or off my list.

[neverdem]

Thanks for the link.

[Walkingfeather]

I am very very conservative and I would bet she will recuse. But not until the time of the case. She will embarrass the court.

[Lauren BaRecall]

LOL

[bitt]

SWEET PING

[raybbr]

If the section were read so broadly as to suggest that her participation on one case involving Obamacare would disqualify her from hearing others, such a reading would also require that when a case comes before the court regarding a matters which the court has previously decided, any judges who were on the court when the previous case was decided would be required to recuse themselves--clearly absurd.

There's a big difference between actively defending a case and sitting on the bench while the hearing is going on.

[Karliner]

Kagan the plant. She’s EVIL as it SOda-mayer weiner.

[Karliner]

JACK CADE.
Valiant I am.
SMITH [aside].
‘A must needs; for beggary is valiant.

JACK CADE.
I am able to endure much.

DICK [aside].
No question of that; for I have seen him whipp’d three market-days together.

JACK CADE.
I fear neither sword nor fire.

SMITH [aside].
He need not fear the sword; for his coat is of proof.

DICK [aside].
But methinks he should stand in fear of fire, being burnt i’ th’hand for stealing of sheep.

You can almost hear the rim-shot after everything Dick or Smith say here.
Cade proceeds to go more and more over the top, and begins to describe his absurd ideal world:

JACK CADE.
Be brave, then; for your captain is brave, and vows reformation. There shall be in England seven half-penny loaves sold for a penny: the three-hoop’d pot shall have ten hoops; and I will make it felony to drink small beer: all the realm shall be in common; and in Cheapside shall my palfrey go to grass: and when I am king,- as king I will be,-
ALL.
God save your majesty!

Appreciated and encouraged, he continues on in this vein:
JACK CADE.
I thank you, good people:- there shall be no money; all shall eat and drink on my score; and I will apparel them all in one livery, that they may agree like brothers, and worship me their lord.
And here is where Dick speaks the famous line.
DICK.
The first thing we do, let’s kill all the lawyers.

[KC Burke]

Bump

[sport]

In my opinion, the chances of recusing herself are higher than the chances of the sun rising in the west.

My personal belief is that it will be held as "Constitutional". Which will please both the Republican and Democrat Parties.

[narses]

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[SunkenCiv]

Thanks neverdem.

[AuH2ORepublican]

I guess the individual mandate would be deemed unconstitutional, and the president would not be able to enforce it, in districts covered by the federal judicial circuit whose Court of Appeals ruled it unconstitutional, since such decision would stand; but the individual mandate would be enforceable in the circuit whose Court of Appeals ruled it constitutional. And as for other circuits, they could do whatever they wanted.

A rational president would realize that having an entire federal judicial circuit in which the individual mandate could not be enforced would cause the entire scheme to unravel, and would move to adopt a new healthcare scheme, just as he would had the Supreme Court struck it down, but we’re not dealing with a rational president.

In any event, we need to get 5 Justices to declare the individual mandate unconstitutional, and elect a Congress and a president who will repeal the entire law.