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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.
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.”
Internal Department of Justice documents secured by CNSNews.com 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, CNSNews.com 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 CNSNews.com with any documents responsive to the FOIA request, the Media Research Center, CNSNews.com’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 CNSNews.com, 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 CNSNews.com 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.”
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.
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.
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.
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.
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.”
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.