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Kagan Sits in Judgment of Obamacare—Despite Cheering Its Passage and Assigning Lawyer to Defend It

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posted on Mar, 26 2012 @ 03:53 PM
This should not be!! Justice Kagan should recuse herself from this entire proceeding. What is going on here?

When the Supreme Court on Monday began hearing oral arguments in the cases challenging the constitutionality of the Patient Protection and Affordable Care Act—AKA “Obamacare”—Supreme Court Justice Elena Kagan showed up to hear the arguments and gave no indication she would recuse herself from judging the cases even though she had cheered enactment of Obamacare as an Obama political appointee and had personally assigned her top deputy in the Obama Justice Department to defend the law in federal court.

Conflict of interest!

A federal law, 28 USC 455, says 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.”

Court case to obtain documents regarding Kagan's involvement with Obamacare prior to her judicial appointment

Internal Department of Justice documents secured by through the Freedom of Information Act demonstrate that when Kagan was Obama’s solicitor general, charged with defending his administration’s positions in federal court disputes, she personally assigned her top deputy to handle the anticipated legal challenges to Obamacare.

On May 25, 2010, a month before the Senate Judiciary Committee convened confirmation hearings on Kagan’s Supreme court nomination, filed a Freedom of Information Act (FOIA) request with the Department of Justice seeking documents related to Kagan’s possible involvement in the Obamacare legislation or litigation and decisions she made on recusing or not recusing herself from cases as solicitor general because they might later come before her were she ever confirmed to a federal court.

On Nov. 23, 2010, after DOJ had failed for six months to provide with any documents responsive to the FOIA request, the Media Research Center,’s parent organization, filed suit against DOJ in the U.S. District Court for the District of Columbia. The suit called on DOJ to release the relevant documents.

On March 15, 2011, while MRC’s FOIA lawsuit was still pending in the district court, DOJ released 66 pages of internal documents to, partially responding to the FOIA request. (The ongoing FOIA lawsuit is now in the U.S. Court of Appeals for the District of Columbia.)

On Sunday, March 21, 2010, the day the House voted to enact Obamacare, Kagan had an email exchange with Harvard Law Prof. Lawrence Tribe, who at that time was working for the Obama Justice Department. DOJ did not release this email exchange to until Nov. 9, 2011. In it, Kagan expressed glee that Obamacare was going to pass that day.

“I hear they have the votes, Larry!!” wrote Obama’s future Supreme Court nominee. “Simply amazing.”

Read on for greater detail on Kagan's involvement in Obamacare.

Just ridiculous! She should not be anywhere near a bench for this case and we still don't have all of the information on her past involvement.

posted on Mar, 26 2012 @ 03:56 PM
In case you hadn't noticed... Those rules don't seem to apply anymore... ...and this with a conservative Chief Justice.

Who decides who sits on a case? It would seem that the Chief Justice would, no? Or is it a rotation basis?

But yes, she should recuse herself post haste. Those pesky damned rules...

posted on Mar, 26 2012 @ 04:03 PM
I read about this today. I knew she was involved but I didn't exactly know how far her involvement went.
If she should continue, this should be a call for impeachment by the House and trial in the Senate.
Of course this won't happen but it should. She was appointed specifically for this reason-to approve Obamacare.
I hope this irks some of the marginal sitting judges on the Supreme Court but we will never know. I would bet that the Chief Justice has spoken to her about it but he has no power to remove her from this. If he did, it would be seen just as political a move as it was to put her there for the obvious reason except he would be correct.

posted on Mar, 26 2012 @ 04:04 PM
If Clarence Thomas is going to sit in on it...than Kagan has no reason not to either.

Thomas has a larger conflict of interest than Kagen does.

posted on Mar, 26 2012 @ 04:08 PM
reply to post by OutKast Searcher

I don't know if he has as much involvement in this as does Kagan, but the appearance makes it seem so. Therefore, they should both recuse.

posted on Mar, 26 2012 @ 04:12 PM

Originally posted by Nite_wing
reply to post by OutKast Searcher

I don't know if he has as much involvement in this as does Kagan, but the appearance makes it seem so. Therefore, they should both recuse.

So if they both don''s still even and no one should be crying over it.

Kagen won't recuse herself if Thomas doesn't...end of story.

posted on Mar, 26 2012 @ 04:40 PM
reply to post by OutKast Searcher

I won't play the link game with you because we both know the subject.
She was actually involved in selecting lawyers to defend it. Correct me if I am wrong but Thomas spoke at a fundraiser of opponents? Keynote perhaps ? I will cede he may have a conflict also, but Kagan was involved in the defense of it. A little harder position to defend.don't you think? This is a blatant conflict so it raises more attention. The proud nail gets the hammer

posted on Mar, 26 2012 @ 04:52 PM
reply to post by hangedman13

Thomas' wife is the founder and ran a lobbying group against the health care bill.

She even released a statement herself calling it unconstitutional.

Now, for a wife of a SCOTUS judge to do this makes that judge have a clear conflict of interest.

posted on Mar, 26 2012 @ 05:36 PM
reply to post by seagull

It's up to the individual justice's themselves. They hold all the power. It's not unprecedented for a justice to not recuse themself from a hearing due to...whatever. The only person who can tell Kagan or Thomas to recuse themselves are themselves.

posted on Mar, 26 2012 @ 07:09 PM

Originally posted by OutKast Searcher
reply to post by hangedman13

Thomas' wife is the founder and ran a lobbying group against the health care bill.

She even released a statement herself calling it unconstitutional.

Now, for a wife of a SCOTUS judge to do this makes that judge have a clear conflict of interest.

I was not aware of thomas' angle with the wifey. He should also recuse himself. Rules are rules.

posted on Mar, 26 2012 @ 07:41 PM
reply to post by jibeho

Scalia and Thomas as well as Roberts would have to go based on.

1. Scalia and Thomas have Koch / Tea Party / Anti ACA activities.
2. Roberts has already shown his bias by saying the President lied in public, on camera.

I may be mistaking Roberts for Alito, it was one or the other.

edit on 26-3-2012 by ziggystrange because: to add clarification

posted on Mar, 26 2012 @ 08:05 PM
From Forbes

Sc alia And Thomas Party With Obamacare Challengers On Day Court Takes Up Case

Among the sponsors of the fundraiser for the Federalist Society, a conservative group long favored by Scalia and Thomas, were Bancroft PLLC, the law firm that will argue that the insurance mandate provisions of the ACA is an overreach of Congress’ powers under the Commerce Clause of the Constitution and, therefore, unconstitutional. Also listed as an event sponsor was law firm Jones Day, the lead counsel in a separate case challenging the law brought by the National Federation of Independent Business.

Illegal? A violation of ethical rules?

Not at all. The members of the Court are pretty much on their own when it comes to who they choose to hang out with and what political dinners they wish to attend.


That is another story. One would hope that these two members of the Court would have some sensitivity to the message conveyed to the public by choosing, on the day they agreed to take the case, to be honored by the folks on one side of the issue in what may be the most important matter heard by the Supreme Court since Bush v. Gore.

Also mentions a reason Elena Kagan should recuse herself.

This vote on this case will be interesting.

posted on Mar, 26 2012 @ 08:51 PM
God I hate to say this, I mean I REALLY hate to say this.

I agree with jibeho, (good god I feel dirty saying that) she should recuse herself from this case. And so should Thomas. Both have a clear conflict of interest here.

Now I have to take a scalding hot shower to wash away the shame.

posted on Mar, 26 2012 @ 09:18 PM
reply to post by OutKast Searcher

I'd forgotten that about the wife. Thomas, too, should recuse himself.

posted on Mar, 26 2012 @ 09:24 PM
I recuse myself from this topic because it doesn't matter who bows out and should bow out.

Anyone who thinks the Scotus isn't political is fooling themselves nothing is going to stop Obama care he stack the scoius deck well in advance.

Stick a fork in us were done sold out agian to the insurance companies.

One bright note the commerce clause which those idiots think gives them power only applies if that product,good or service is sold over state lines much like the federal gestapo atf regulates firearms,tobacco,alcohol.

However all federal rules are null and void when good,products and services are sold in house meaning state control state rights.

IF the state doesn't export anything the feds can go to hell.
edit on 26-3-2012 by neo96 because: (no reason given)

posted on Mar, 26 2012 @ 09:32 PM

Originally posted by ziggystrange

2. Roberts has already shown his bias by saying the President lied in public, on camera.

I may be mistaking Roberts for Alito, it was one or the other.

I forgot about that!

At 2010 State of the Union address, Alito mouthed "not true" as he shook his head, to a part of the speech talking about Citizens United decision.

Later on, in public to students Roberts said he was "troubled" by remarks in the SOU speech, hailing the event as more of a "political pep rally".

While the process for choosing SC justices is political, once they are sworn in they are expected to have a judicial temperament:

The public’s faith in the rule of law depends, to no small degree, on the idea that judges try, as best they can, to maintain a judicial temperament — that they keep a certain distance from public and even private events that appear, in the truest sense of the word, partisan, and that they maintain an open mind. Not a blank mind, devoid of a judicial philosophy, but an open mind — a certain receptiveness to reason, argument and fact. It’s not that we need justices without political impulses; we need justices who can keep them in check. “We need to believe in Santa Claus a little bit,” said a former Supreme Court clerk, “and these guys aren’t making it easy.”

Once the justice is sworn in, I am not troubled by what s/he has done in the past. It is what is done during time as SCJ that concerns me. If a justice cannot be perceived as wanting to maintain an open mind on cases before the court, that is troubling.

However, the reality is that the SC is the highest law of the land, imparting it with special attributes, as expressed by CJ Roberts

Chief Justice Roberts Defends Kagan, Thomas Recusal Decisions On Health Care Lawsuit

posted on Mar, 26 2012 @ 11:04 PM
reply to post by jibeho

I had thought that the Supreme Court had recently said she would in fact not be sitting during arguments or participating in the final decision?

Now she is?

If that's not blatant corruption, what is?

posted on Mar, 26 2012 @ 11:11 PM
reply to post by HauntWok

LOL Ditto! Both should recuse. Not that it really matters, but if our government was actually what we all thought it was, that's how it should go.

posted on Mar, 26 2012 @ 11:13 PM
reply to post by neo96

Legally, if the Federal Government can force us to buy health insurance, which in fact is NOT a "cross border" purchase because all insurance is regulated by a State Superintendent through each states Insurance regulation board, then, technically, legally, the Federal Government can mandate the purchase of anything.

So next time they give billion dollar loans to solar companies they have a share of, they can mandate that all homeowners install solar panels.

When GM fails again (and they will) they can legally force anyone with a care over 5 years old to buy a new one.

If they were so inclined they could force you to buy life insurance, disability insurance, a federal car insurance mandate..

All kinds of things.

THAT is the key to this ruling. Is it constitutional for the Government to force citizens to buy a product via a private source through the threat of a federal fine. It's not a tax .. a tax is totally in their right, this is something that's never been done before.

posted on Mar, 27 2012 @ 07:24 AM
Here is an article from December 2012 discussing this very topic. The odd bit concerning Kagan is the fact that she was involved in various communications as Solicitor General with DOJ lawyers and the deputy solicitor general. Plus many more documented instances in which the WH has refused to release the communication trail. (you know, the Transparent Administration).

What are they hiding?

Later, in an email chain on March 21, 2010, Mr. Perrelli sent a message to various Justice Department lawyers, including the deputy solicitor general, about a meeting the next day to discuss the constitutional challenge to Obamacare. Ms. Kagan was included in that mailing, too, which suggests she was involved in planning for the upcoming litigation (“participated as counsel”).

The Obama administration has delayed turning over some emails, refused to turn over other material, redacted some material, and gone to court to prevent disclosure. If the White House has something to hide, it would act exactly the way it has been acting. If it has nothing to hide, it should turn over all materials requested.

It's certainly complicated and if she refuses to recuse herself, what message does that send down the line when the final decision is made. This case is HUGE. Just as HUGE as the aftermath in the wake of Pro or Con decision by the Supreme Court. You know damn well the political strategists are mapping every angle of this case as is the Court in ways I thought I would never see.
edit on 27-3-2012 by jibeho because: (no reason given)

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