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.”