Tag Archives: Elena Kagan

Kagan ’09: ‘There is No Federal Constitutional Right to Same-Sex Marriage’

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Let’s take a stroll down memory lane.  It’s 2009, and Elena Kagan is answering questions during her confirmation hearing for the position of Solicitor General within the Obama administration. According to William Jacobson at Legal Insurrection, who posted this piece on March 25, this is what she had to say about gay marriage:

1. As Solicitor General, you would be charged with defending the Defense of Marriage Act. That law, as you may know, was enacted by overwhelming majorities of both houses of Congress (85-14 in the Senate and 342-67 in the House) in 1996 and signed into law by President Clinton.

 a. Given your rhetoric about the Don’t Ask, Don’t Tell policy—you called it “a profound wrong—a moral injustice of the first order”—let me ask this basic question: Do you believe that there is a federal constitutional right to samesex marriage?

Answer: There is no federal constitutional right to same-sex marriage.

b. Have you ever expressed your opinion whether the federal Constitution should be read to confer a right to same-sex marriage? If so, please provide details.

Answer: I do not recall ever expressing an opinion on this question.

Since gay marriage has been thrusted into the political limelight again, Jacobson has resurrected his posts about Kagan from three years ago.  Now, when Jacobson posted about Kagan’s remarks, he was criticized by some conservatives, including Hot Air’s Allahpundit, over the semantics.  National Review’sMaggie Gallagher went a bit further, and called Jacobson’s post “shameful.”  Thankfully, Gallagher’s colleague at National Review, Ed Whelan, provided Jacobson with her letter to then-Sen. Arlen Specter (D-Pennsylvania) at the time to clarify the issue.

In a March 18, 2009 letter (embedded below, at pp. 11-12), which is not publicly available but which Whelan kindly provided to me, Kagan supplemented her written answers at the request of Arlen Specter. Here is the language in the letter seized upon by my critics to show that Kagan really didn’t mean what she said, and really just was opining as to the current state of the law:

Constitutional rights are a product of constitutional text as interpreted by courts and understood by the nation’s citizenry and its elected representatives. By this measure, which is the best measure I know for determining whether a constitutional right exists, there is no federal constitutional right to same-sex marriage.

These sentences do make it seem as if Kagan walked away from her prior written statement that “[t]here is no federal constitutional right to same-sex marriage.”

But these sentences are not the full supplemental response. Immediately preceding these sentences was the following language:

I previously answered this question briefly, but (I had hoped) clearly, saying that “[t]here is no federal constitutional right to same-sex marriage.” I meant for this statement to bear its natural meaning.

When the full supplemental statement by Kagan is read in context, there is nothing to suggest that Kagan was walking away from her written statement that there is no federal constitutional right to same-sex marriage.

Of additional interest is that when the Massachusetts Supreme Court found a state constitutional right to same-sex marriage, 18 Harvard Law School professors signed onto an amicus [i.e., friend of the court] brief supporting that ruling. But not Kagan.

Now, it’s Justice Kagan, and I wonder if she still thinks that “there is no federal constitutional right to same-sex marriage.”  Then again, she could just hop on the bandwagon like everyone else.   Sorry Politico, but this is the real ‘gotcha‘ story.

(H/T Legal Insurrection)

Elena Kagan March 18, 2009 Letter to Arlen Specter

FINALLY…it begins. RETRIBUTION!

In this case retribution may be defined and likened to justice being served to We the People as a requital for those who acted against the public trust and best interest. Enter one Elena Kagan, last justice appointed to the Court of Nine to be the final adjudicant on the validity of law made by Congress. It is a proven fact that while acting in the position of Solicitor General, an Executive Branch position,  for Great Leader that Ms. Kagan did act in a manner that would be considered as lobbying for ObamaCare in her capacity in that position of great influence. This story was covered here:

(CNSNews.com) – The House Judiciary Committee is launching an inquiry to probe the involvement that Supreme Court Justice Elena Kagan had in “health care legislation or litigation” when she was serving as President Barack Obama’s solicitor general and was responsible for defending the administration’s position in federal court cases.

The inquiry will look at whether Kagan is required by law to recuse herself from judging cases challenging President Obama’s health-care law and whether her answers to questions posed by the Senate Judiciary Committee during her confirmation process were accurate.

and continues> http://www.cnsnews.com/news/article/judiciary-committee-launches-probe-kagan 

Here fact ends and my opinion begins for it’s my position in belief that Great Leader’s appointment of her was with great intent as she could be the deciding vote in validating ObamaCare against any high court challenge that was certain to come and very likely prior to NOvember 2012. Seizing government control of the US health care delivery system is endemic to the progressive agenda and socialist influences. It was the first strategy in the socialism one-two punch offense. The second was Cap and Trade, which failed, but is still being pursued via piecemeal legislation and Executive Branch agency directive and regulation issuances.

In politics there is only strategy, not coincidence. It’s the dirtiest game around and played for all the marbles all the time. In that prior position Kagan is likely the most conversant person sitting on that court in the minutia of hidden and vague detail in that law. This puts her in a position of being able to handle herself very well in deliberation with other justices and to subliminally, if not directly, influence their thinking. We all know how much text is involved and even for the law clerks of the high court justices translating them to lucid familiarity and relationship to all prior precedents in law is a withering task. It’s likely another reason why this law was drafted in the lengthy and confusing, constant intra-referential construction manner that it was. Anticipation of a future challenge. In and of itself, that manner is suggestive of the commitment of outside influences aligned well prior to Obama’s election having anticipated his election. There is no way, if you’ve had the great displeasure of trying to read the original bill as I have, that such could have been assembled in the time between his election and it’s submission as legislation. Most people fail to think back and grasp that perception. To make that case I went to my files and dug out this titled article include at the source noted(1) and under the title:

The HC Monstrosity-All 1,018 Pages

(1) http://endgamenow.com/nationalized-healthcare/obamacare-monstrosity-analyzed-all-1018-pages-of-hr-3200/ 

If you read and verify this analysis of the original intent of this bill the end goal of malicious intent becomes very obvious.

I intend to follow-up on this inquiry and we all should keep a little file set aside with our representatives’ email contacts and advise them to keep the pressure on to pursue this to a conclusion and not allow the inquiry to die in committee neglect. Forcing her recusal would be a significant victory not to be underestimated as to end effect in adjudicating ObamaCare.

If you agree please consider passing the link to this topic to your mailing lists. It’s how we activate the influence of the ‘net!

Documents Raise Ethical Questions on Justice Kagan’s Failure to Recuse Herself on ObamaCare

Elena Kagan Supreme Court JusticeKagan 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.”

WASHINGTON, May 18, 2011 /PRNewswire-USNewswire/ — 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 inApril 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’s 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:

Schmaler 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 GeneralBeth 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 Kaganhelped 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.