Posted on 05/18/2011 10:26:02 AM PDT by jazusamo
Documents Raise Questions about Supreme Court Justice Kagan’s Role in Obamacare Defense as Solicitor General
Kagan Directs Staff to “Be Involved” in Crafting Defense of Obamacare; Scolds Justice Colleague on the Issue of Her Participation: “This Needs to be Coordinated…You Should not Say Anything about This before Talking to Me.”
Judicial Watch, the public interest group that investigates and prosecutes government corruption, announced today that it has obtained documents suggesting Supreme Court Justice Elena Kagan helped coordinate the Obama administration’s legal defense of the Affordable Care Act (also known as Obamacare) while she served as Solicitor General. Kagan has said she was not involved in Department of Justice (DOJ) preparations for legal challenges to Obamacare. Moreover, the Supreme Court justice did not recuse herself from the High Court decision in April 2011 not to “fast-track” for Supreme Court review Virginia’s lawsuit challenging Obamacare.
The following are highlights from the documents obtained by Judicial Watch pursuant to a Freedom of Information Act (FOIA) lawsuit filed on February 24, 2011. (Judicial Watch’s lawsuit has been consolidated with a similar FOIA lawsuit that had been first filed against the DOJ by the Media Research Center. The lawsuits are now both before the U.S. District Court for the District of Columbia. The documents referenced in this release were first produced in the Media Research litigation.)
According to a January 8, 2010, email from Neal Katyal, former Deputy Solicitor General (and current Acting Solicitor General) to Brian Hauck, Senior Counsel to Associate Attorney General Thomas Perrelli, Kagan was involved in the strategy to defend Obamacare from the very beginning:
Subject: Re: Health Care Defense:
Brian, Elena would definitely like OSG [Office of Solicitor General[ to be involved in this set of issues…we will bring in Elena as needed. [The “set of issues” refers to another email calling for assembling a group to figure out “how to defend against the…health care proposals that are pending.”]
On March 21, 2010, Katyal urged Kagan to attend a health care litigation meeting that was evidently organized by the Obama White House: “This is the first I’ve heard of this. I think you should go, no? I will, regardless, but feel like this is litigation of singular importance.”
In another email exchange that took place on January 8, 2010, Katyal’s Department of Justice colleague Brian Hauck asked Katyal about putting together a group to discuss challenges to Obamacare. “Could you figure out the right person or people for that?” Hauck asked. “Absolutely right on. Let’s crush them,” Katyal responded. “I’ll speak with Elena and designate someone.”
However, following the May 10, 2010, announcement that President Obama would nominate Kagan to the U.S. Supreme Court, Katyal position changed significantly as he began to suggest that Kagan had been “walled off” from Obamacare discussions.
For example, the documents included the following May 17, 2010, exchange between Kagan, Katyal and Tracy Schmaler, a DOJ spokesperson:
Shmaler to Katyal, Subject HCR [Health Care Reform] litigation: “Has Elena been involved in any of that to the extent SG ]Solicitor General’s] office was consulted?...
Katyal to Schmaler: “No she has never been involved in any of it. I’ve run it for the office, and have never discussed the issues with her one bit.”
Katyal (forwarded to Kagan): “This is what I told Tracy about Health Care.”
Kagan to Schmaler: “This needs to be coordinated. Tracy you should not say anything about this before talking to me.”
Included among the documents is a Vaughn index, a privilege log which describes records that are being withheld in whole or in part by the Justice Department. The index provides further evidence of Kagan’s involvement in Obamacare-related discussions.
For example, Kagan was included in an email chain (March 17–18, 2010) in which the following subject was discussed: “on what categories of legal arguments may arise and should be prepared in the anticipated lawsuit.” The subject of the email was “Health Care.” Another email chain on March 21, 2010, entitled “Health care litigation meeting,” references an “internal government meeting regarding the expected litigation.” Kagan is both author and recipient in the chain.
The index also references a series of email exchanges on May 17, 2010, between Kagan and Obama White House lawyers and staff regarding Kagan’s “draft answer” to potential questions about recusal during the Supreme Court confirmation process. The White House officials involved include: Susan Davies, Associate White House Counsel; Daniel Meltzer, then-Principal Deputy White House Counsel; Cynthia Hogan, Counsel to the Vice President; and Ronald Klain, then-Chief of Staff for Vice President Biden. The DOJ is refusing to produce this draft answer.
The Vaughn index also describes a March 24, 2010, email exchange between Associate Attorney General Beth Brinkmann and Michael Dreeben, Kagan’s Deputy Solicitor General, with the subject header, “Health Care Challenges:” “…I had a national conference call with the Civil Chiefs. A memo also went out the day before. I am forwarding right after this. Let’s discuss if you have more ideas about what to do.”
As reported by CNS News:
In the questionnaire she filled out for the Senate Judiciary Committee during her confirmation process, Kagan said she would abide by the “letter and spirit” of 28 U.S.C. 455 in deciding whether she felt compelled to recuse herself as a Supreme Court Justice from any case that came before the High Court.
According to the law, a ‘justice … shall disqualify himself in any proceeding in which his impartiality might be reasonably questioned.’ It further says any justice ‘shall also disqualify himself … [w]here he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceedings or expressed an opinion concerning the merits of the particular case in controversy.’
“Any reasonable person would read these documents and come to the same conclusion: Elena Kagan helped coordinate the Obama administration’s defense of Obamacare. And as long as the Justice Department continues to withhold key documents, the American people won’t know for sure whether her involvement would warrant her recusal from any Obamacare litigation that comes before the High Court,” said Judicial Watch President Tom Fitton.
“Like this one?
Another email chain on March 21, 2010, entitled “Health care litigation meeting,” references an “internal government meeting regarding the expected litigation.” Kagan is both author and recipient in the chain. “
Sorry. I blew right past that somehow and totally missed it.
Have you met my companion, astigmatism? :)
There is only the hive mentality...all other views are invalid, infidel, and must be crushed.
Ethics do not matter.
Debate does not matter.
Honesty does nto matter.
Democracy does not matter.
All that matters is the hive-view.
/demthink
Nope.
Can a Republican majority Congress impeach her?
Takes a 2/3rds vote in the Senate to impeach. It's very rare feat to pull off. The GOP isn't getting 2/3rds.
>> Can the other judges on the Supreme Court force her to recuse herself? Can anyone? <<
Force? No. Persuade? Maybe.
>> Can a Republican majority Congress impeach her? <<
Any majority in the HOUSE can impeach. Doesn’t have to be a “Republican” majority. They can impeach ANY executive or judicial branch government official, any time, for any reason.
But a conviction and removal from office takes 2/3 of the SENATE, not just a simple majority. And there’s simply no way that’s gonna happen.
That’s NOT a man, baby!
i have seen pictures.... she’s definitely guilty.
t
She wouldn't be there without the help of some of our Good Republican Senators. Orin Hatch gave us a couple goodies, saying he felt the President has a right to pick the people he wants. He conveniently forgot all the Filibusters agains Republican appointments. Strange huh?
That picture ruined a perfectly good supper. :))
bttt
I think so, but it was all a blur.
So, what are ya gonna do about it> Beyotch is crooked as the day is long.
Democrat Judges never recuse themselves. They are corrupt.
There’s a catch to this - if she does recuse herself, that could mean a split vote. I believe (I have read) that if the vote is split, the lower-court ruling stands...considering there are different rulings at the federal level, it could be tricky.
I’ve been keeping an eye out for this, and assumed that she Would recuse herself...wondering now if this is all the usual kabuki intended to make her look ‘humbled’ if she backs out of the final case?
That’s correct, if the SCOTUS vote is tied the appellate court ruling stands.
I doubt very much she’ll recuse herself and also doubt this is a feint. There’s probably a better than 50% chance the appellate ruling will favor tubing obamacare.
Don't think there's a 'disqualifying' action available. The USSC Judges have to recuse themselves .................................. FRegards
Yes, but if the pubbies couldn't even get 41 votes to block cloture on her there is no way in Hell that they will get 67 votes to remove her.
House impeaches. Senate convicts. The House should impeach her even if they know she wont be convicted. But the first step is to hold House impeachment hearings. they should at least do that.
House impeaches. Senate convicts. The House should impeach her even if they know she wont be convicted. But the first step is to hold House impeachment hearings. they should at least do that.
It would be funny if Obamacare lost a vote in the SCOTUS because Obama appointed a judge who has to recuse herself.
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