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Documents Raise Questions about Supreme Court Justice Kaganís Role in Obamacare Defense as...
Judicial Watch ^ | May 18, 2011

Posted on 05/18/2011 10:26:02 AM PDT by jazusamo

Documents Raise Questions about Supreme Court Justice Kagan’s Role in Obamacare Defense as Solicitor General

Kagan 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.”

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 in April 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 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:

Shmaler 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 General Beth 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 Kagan helped 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.

Documents Uncovered



TOPICS: Breaking News; Front Page News; News/Current Events
KEYWORDS: considerenthnicity; democrats; doj; elenakagan; fascistpig; impeach0bama; impeachkagan; judicialwatch; jw; kagan; kagansperjury; liberalfascism; liedtogetonscotus; nazi; obama; obamacare; perjurybykagan; scotus; socialistdemocrats; socialisthealthcare; typicalcommie
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Obama's DOJ is up to their necks in this refusing to release info, as usual.
1 posted on 05/18/2011 10:26:09 AM PDT by jazusamo
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To: jazusamo

Can the other judges on the Supreme Court force her to recuse herself? Can anyone? Can a Republican majority Congress impeach her?


2 posted on 05/18/2011 10:28:41 AM PDT by KansasGirl
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To: jazusamo

This evidence is very, very close, but no cigar, without a direct tie to Kagan’s keyboard. However, it certainly fills the bill for “reasonable question” enough to impose recusal. The AG holds the stinger and won’t let go.


3 posted on 05/18/2011 10:33:09 AM PDT by RitaOK
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To: KansasGirl
I believe but am not certain that a justice has to recuse themselves. A justice can be impeached but that's very doubtful I'd guess.
4 posted on 05/18/2011 10:34:10 AM PDT by jazusamo (His [Obama's] political base---the young, the left and the thoughtless: Thomas Sowell)
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To: KansasGirl

Justices are impeachable is all I know. The process surely is similar to the other two branches of government’t but haven’t a clue on the exact process.


5 posted on 05/18/2011 10:37:18 AM PDT by RitaOK
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To: KansasGirl

Justices are impeachable is all I know. The process surely is similar to the other two branches of government’t but haven’t a clue on the exact process.


6 posted on 05/18/2011 10:37:18 AM PDT by RitaOK
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To: jazusamo

0bama, Kagan, Holder, Geithner, and all the rest of them can do whatever they want, as long as everyone’s too gutless to stand up to them.
Which has already been demonstrated many times.


7 posted on 05/18/2011 10:40:17 AM PDT by 668 - Neighbor of the Beast (America is in dire distress and nobody is lifting a finger except to strike the keyboard.)
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To: Jet Jaguar; NorwegianViking; ExTexasRedhead; HollyB; FromLori; EricTheRed_VocalMinority; ...

The list, ping

Let me know if you would like to be on or off the ping list

http://www.nachumlist.com/kagan.htm


8 posted on 05/18/2011 10:50:05 AM PDT by Nachum (The complete Obama list at www.nachumlist.com)
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To: jazusamo
So? Calypso Wireless is pursuing a case against an alleged bad actor who wants to appropriate for himself the company's invaluable key patent. The judge is alleged to be a buddy of the defendant's lawyer. Judge has refused to remove himself from the trial. Apparently, conflicts of interest are dismissed out of hand.
9 posted on 05/18/2011 10:52:18 AM PDT by pabianice
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To: KansasGirl
Can a Republican majority Congress impeach her?

Yes they can but not until they have a majority in the Senate. You see, the House votes to impeach (meaning: to charge) and the Senate tries the case (Meaning: guilty or not guilty.

This would be a most interesting situation and I for one, hope it happens!

10 posted on 05/18/2011 10:53:45 AM PDT by Rapscallion (Obama is a fraud. The founders gave us the tool of impeachment for a reason.)
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To: KansasGirl

http://wiki.answers.com/Q/Can_a_US_Supreme_Court_justice_be_impeached_and_removed_from_office


11 posted on 05/18/2011 11:07:59 AM PDT by Mr. Wright
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To: jazusamo

Does this disqualify her from taking part in the SCOTUS decision on ObamaCare once it hits them?


12 posted on 05/18/2011 11:53:50 AM PDT by cranked
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To: jazusamo
Did someone mention Kagan?


13 posted on 05/18/2011 11:59:32 AM PDT by SkyPilot
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To: 668 - Neighbor of the Beast
0bama, Kagan, Holder, Geithner, and all the rest of them can do whatever they want, as long as everyone’s too gutless to stand up to them. Which has already been demonstrated many times.

Bingo. We have a government that has absolutely zero regard for the law. Who in their right mind thinks Kagan will actually recuse herself? I mean, Obama put her there precisely for this reason.

14 posted on 05/18/2011 12:09:27 PM PDT by RightWingNilla
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To: RightWingNilla

In case it wasnt clear, I meant that Obama put Kagan on the court primarily to defend his beloved Commiecare. There is no way she is recusing herself.


15 posted on 05/18/2011 12:13:55 PM PDT by RightWingNilla
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To: RitaOK
...no cigar, without a direct tie to Kagan’s keyboard.

Like this one?

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.

16 posted on 05/18/2011 12:23:55 PM PDT by norton
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To: jazusamo

The woman is not qualified and obviously a hack for the left.

She should be removed for corruption.


17 posted on 05/18/2011 12:26:17 PM PDT by dforest
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To: cranked

It seems it should but being the DOJ won’t release pertinent info it doesn’t look like it will.

A justice has to recuse themselves and it’s an honor system as I understand it but a person without honor won’t do it.


18 posted on 05/18/2011 12:36:09 PM PDT by jazusamo (His [Obama's] political base---the young, the left and the thoughtless: Thomas Sowell)
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To: indylindy

Bump.


19 posted on 05/18/2011 12:37:53 PM PDT by jazusamo (His [Obama's] political base---the young, the left and the thoughtless: Thomas Sowell)
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To: jazusamo
Photobucket
20 posted on 05/18/2011 1:35:04 PM PDT by Tzimisce (Never forget that the American Revolution began when the British tried to disarm the colonists.)
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