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WashPo Calls For Kagan’s Recusal: “If She Were Still In [Her Last] Job, Kagan Would Be Defending The Health-Care Law…”

November 29th, 2011 by mopns · No Comments

The Washington Post reports yesterday, “Just a little more than an hour after some House Democrats recently demanded an inquiry into Supreme Court Justice Clarence Thomas’s ethics, Senate Republicans stepped up the pressure on Justice Elena Kagan to take herself out of the court’s decision on the health-care reform act. . . . Federal law requires judges, including those on the Supreme Court, to disqualify themselves when their ‘impartiality might be reasonably questioned’ . . . . In addition, it calls for recusal when the judge has served in the government and ‘participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case or controversy.’”

The Post noted, “The charges against Kagan arise from her work as solicitor general, the government’s top appellate lawyer. If she were still in the job, Kagan would be defending the health-care law at the Supreme Court rather than deciding whether it is constitutional. Kagan was notified by the White House in March 2010 — just before the law was passed — that she was under consideration to be named to the high court. She said during her confirmation hearings that she played no role in preparing for the inevitable legal challenges that were to come. . . . But congressional Republicans say e-mails released to conservative groups under public records requests raise questions about the White House’s contention she had been ‘walled off’ from discussions about the health-care act. One e-mail from then-Deputy Solicitor General Neal Katyal says Kagan wanted to make sure her office was involved in strategy decisions, although Katyal said he took the lead and Kagan was not involved. Another e-mail seemed to indicate enthusiasm for the bill. In response to a message at the time of the vote from Harvard law professor Laurence H. Tribe, then working at the Justice Department, Kagan wrote: ‘I hear they have the votes, Larry!! Simply amazing.’ [Rep. Lamar] Smith [R-TX], the [House] Judiciary Committee chairman, and Senate Minority Leader Mitch McConnell have pressed Holder for more information, which his department has been reluctant to provide.”

In a letter to Attorney General Eric Holder, Leader McConnell, and Sens. Jon Kyl (R-AZ), Chuck Grassley (R-IA), and Mike Lee (R-UT) wrote, “[E]mails finally produced by your Department in response to lawsuits to enforce the Freedom of Information Act suggest involvement by then-Solicitor General Kagan in the Administration’s preparations for defending the [Obama administration’s health care law]. In January 2010—two months before then-General Kagan was even aware she was being considered as a potential nominee to the Supreme Court—your Department began planning to defend this law against legal challenges. Neil Katyal, Ms. Kagan’s principal deputy, stated he would “speak with Elena” about her office participating in a Department working group that would plan the Administration’s litigation strategy, exclaiming that he wanted the Administration to ‘crush’ those challenging the [health care law].”

The Senate Republicans’ letter summed up their concerns: “President Obama chose to nominate a member of his Administration to the Supreme Court knowing it was likely that, if confirmed, she would be in a position to rule on his signature domestic policy achievement—‘litigation,’ Mr. Katyal noted to former Solicitor General Kagan, ‘of singular importance’ to the Administration. Among other involvement in this matter, it appears that she was privy to discussions of legal claims and litigation strategy concerning court challenges to the PPACA. And it is apparent that she herself enthusiastically supported this legislation as a member of the Administration which is now defending it. When a former member of the Administration is in a position to rule on litigation in which she apparently had some involvement and which concerns legislation she herself supports, public confidence in the administration of justice is undermined.”

Related:

Rasmussen Reports: Most Voters Still Favor Health Care Repeal and Think It’s Likely

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