Tag Archives: recusal

More Kagan E-mailsCome To Light




Federal law (28 USC 445) requires judges to recuse themselves when they have served as counsel or a witness to the case and when his or her impartiality might be questioned. The law also says justices must recuse themselves if they have “expressed an opinion concerning the merits of the particular case in controversy” while serving in government employment. But a justice can use his or her own discretion on recusal.

E-mails between Elena Kagan and members of the Obama Administration reveal that she was more involved with Obamacare law than was previously disclosed. E-mails show that Kagan was involved with forming the legal defense of the Patient Protection and Affordable Care Act (better known as ObamaCare) in her role as solicitor general. In a March 21, 2010 e-mail exchange with Harvard Law professor Laurence Tribe, Kagan, who at that time was US Solicitor General, expressed enthusiasm, so much so that it apparently required two exclamation points, at the news of the law’s impending passage through Congress. “I hear they have the votes, Larry!! Simply amazing,” Kagan wrote to Tribe in one of the e-mails.

Now (December 9, 2011) we are finding that Justice Department (DOJ) e-mails made just days before the House passed ObamaCare show that then-Solicitor General Elena Kagan was brought into the loop as DOJ began preparing to respond to an anticipated legal complaint that Mark Levin and the Landmark Legal Foundation were planning to file against the act if the House used a procedural rule to “deem” the bill passed even if members never directly voted on it. In the days before the March 21, 2010 House vote on the health-care bill, one underlying constitutional issue that became part of the national debate was whether the House could approve the Senate version of the bill without ever directly voting on it (“deem”) by using a procedural rule crafted by then-House Rules Chairman Louise Slaughter (D-NY). That is the procedure Mark Levin was preparing to challenge if used. Use of the so-called Slaughter rule would violate Article 1, Section 7, Clause 2 of the US Constitution which requires both houses of Congress to vote on a bill before it can be presented to the president for his signature.

Further, AG Eric Holder told Congress on Thursday, December 8, 2011, said that he has constitutional separation of powers concerns about providing Republicans documents detailing Supreme Court Justice Elena Kagan’s role in defending the health law when she was in the administration. He said requests for information about any potential conflict would be “best brought” by the parties to the upcoming Supreme Court case on the health law. DOJ has released e-mails indicating Kagan was “walled off” from the discussions once she was aware of the potential nomination. But House Judiciary Chairman Lamar Smith (R-TX) said that there is a “gap” between the time when the legal defense may have been under way and her nomination. He cited the e-mails, indicating Kagan told others in the office on January 8, 2010, that she “definitely would like the Office of the Solicitor General to be involved” in the legal defense. “Ms. Kagan found out she was being considered for a potential Supreme Court vacancy on March 5, 2010,” said Smith. “So the issue is how involved was she in health care discussions between January 8 [2010] and March 5 [2010].”

DOJ offered nothing, no explanation of Kagan’s March 21, 2010, e-mail to Larry Tribe that was sent after she learned of her Supreme Court consideration. What other Elena Kagan e-mails await us?

MSM Ignores Kagan Recusal Request

 CBS, NBC, and ABC all, in their Monday, November 14, 2011, news broadcasts, while reporting that the Supreme Court will hear arguments concerning the constitutionality of ObamaCare, ignored Elena Kagan, her conflict of interest, and calls for her recusal due to her role as solicitor general during and after passage of the Affordable Care Act (ObamaCare) in 2010.

Only ABC’s Jake Tapper said anything about the popularity of ObamaCare. He said, “The health care law is tremendously unpopular, with a new high of 51 percent of Americans viewing it unfavorably, and new low of 34 percent approving of it.” On CBS’s Evening News, legal correspondent Jan Crawford reported, “The administration says the law’s individual mandate provision is critical to its success. Health reform measures, like insurance for people with pre-existing conditions, won’t work unless all Americans pay into the system.”

Justice Elena Kagan would recuse herself from the Supreme Court’s hearing of the challenge to ObamaCare if she had any character. During her confirmation hearings in June, 2010, she indicated she would not, and she has done nothing to suggest she will recuse herself since when the Supreme Court announced on Monday, November 14, 2011, it would take the case. She acknowledged that she was at a meeting in which state litigation against ObamaCare was discussed. Kagan enthusiastically supported ObamaCare, as is made clear in an email to Lawrence Tribe, “I hear they have the votes, Larry!! Simply amazing,” she wrote the day ObamaCare passed the House. The March, 2010, email exchange between Kagan and Tribe raises new questions about whether Kagan should recuse herself from judging cases involving ObamaCare.

BTW, Kagan said she would abide by the “letter and spirit” of 28 U.S.C. 455 in determining whether she needed to recuse herself from any case as a Supreme Court justice. This law says that any “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.”

Elena Kagan's Emails


Now a Supreme Court Justice, Elena Kagan has yet to recuse herself from the ObamaCare cases that will eventually appear on the Supreme Court docket. Emails between Elena Kagan and members of the Obama Administration reveal that she was more involved with Obamacare law than was previously disclosed. Emails show that Kagan was involved with forming the legal defense of the Affordable Care Act (Obamacare) in her role as solicitor general. The Obama administration appointed Kagan. Said Tom Fitton, Judicial Watch president, “It was well known this appointment [as Solicitor General and to the Supreme Court] was key in terms of providing a defense of the health-care law.”

Now we learn that on Thursday, October 13, 2011, a U.S. District judge appointed by Bill Clinton, Judge Ellen Segal Huvelle, ruled that the Justice Department (DOJ) does not have to release emails [then] Solicitor General (SG) Elena Kagan sent from her DOJ account to the White House in which she discussed her recusal decisions as solicitor general because they were “used for a purely personal objective.” Emails SG Kagan sent or received concerning her nomination were not ‘created by the OSG’ but were sent or received by SG Kagan in her personal capacity as a nominee to the Supreme Court rather as opposed to her official capacity as Solicitor General. Judge Huvelle agreed with DOJ that Kagan’s emails to the White House “about recusal decisions as Solicitor General,” as DOJ had described the emails, were indeed personal and not governmental. Judge Huvelle wrote in an opinion, “SG Kagan’s correspondence was not relied upon by the OSG in carrying out its business, but rather was used for a purely personal objective … As such, the relevant factors compel the conclusion that the withheld documents were personal, not attributable to the agency, and therefore were not ‘agency records’.” At issue is whether Kagan must recuse herself as a Supreme Court Justice when the cases challenging the constitutionality of Obamacare reach the court.

Justice Kagan was the Obama administration’s solicitor general when Obamacare was enacted, and when Virginia and Florida filed lawsuits against that health-care plan in federal court. Under federal law, 28 U.S.C. 455, any “justice, judge or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might be reasonably questioned.”

Do we see/smell a conflict of interests on Kagan’s part?

But that’s just my opinion.