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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; 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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To: norton

“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. “

Sorry. I blew right past that somehow and totally missed it.
Have you met my companion, astigmatism? :)


21 posted on 05/18/2011 1:38:46 PM PDT by RitaOK
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To: jazusamo

There is only the hive mentality...all other views are invalid, infidel, and must be crushed.

Ethics do not matter.

Debate does not matter.

Honesty does nto matter.

Democracy does not matter.

All that matters is the hive-view.

/demthink


22 posted on 05/18/2011 1:39:23 PM PDT by Southack (Media Bias means that Castro won't be punished for Cuban war crimes against Black Angolans in Africa)
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To: KansasGirl
Can the other judges on the Supreme Court force her to recuse herself?

Nope.

Can a Republican majority Congress impeach her?

Takes a 2/3rds vote in the Senate to impeach. It's very rare feat to pull off. The GOP isn't getting 2/3rds.

23 posted on 05/18/2011 1:48:50 PM PDT by freedomwarrior998
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To: KansasGirl

>> Can the other judges on the Supreme Court force her to recuse herself? Can anyone? <<

Force? No. Persuade? Maybe.

>> Can a Republican majority Congress impeach her? <<

Any majority in the HOUSE can impeach. Doesn’t have to be a “Republican” majority. They can impeach ANY executive or judicial branch government official, any time, for any reason.

But a conviction and removal from office takes 2/3 of the SENATE, not just a simple majority. And there’s simply no way that’s gonna happen.


24 posted on 05/18/2011 1:49:06 PM PDT by Hawthorn
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To: SkyPilot

That’s NOT a man, baby!


25 posted on 05/18/2011 2:01:25 PM PDT by MileHi ( "It's coming down to patriots vs the politicians." - ovrtaxt)
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To: Rapscallion

i have seen pictures.... she’s definitely guilty.

t


26 posted on 05/18/2011 2:23:09 PM PDT by teeman8r (armageddon won't be pretty, but it's not like it's the end of the world.)
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To: indylindy
The woman is not qualified and obviously a hack for the left.

She wouldn't be there without the help of some of our Good Republican Senators. Orin Hatch gave us a couple goodies, saying he felt the President has a right to pick the people he wants. He conveniently forgot all the Filibusters agains Republican appointments. Strange huh?

27 posted on 05/18/2011 2:48:53 PM PDT by itsahoot (We make jokes, they make progress. Dimmitude, get used to it.)
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To: jazusamo
Repeat after me, America...Abe Fortas, Abe Fortas, Abe Fortas...
28 posted on 05/18/2011 3:07:47 PM PDT by April Lexington (Study the Constitution so you know what they are taking away!)
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To: SkyPilot

That picture ruined a perfectly good supper. :))


29 posted on 05/18/2011 3:14:04 PM PDT by jennings2004 (Sarah Palin: "The bright light at the end of a very dark tunnel!")
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To: jazusamo

bttt


30 posted on 05/18/2011 3:19:51 PM PDT by hattend (Obama is better than OJ... He found a killer while on the golf course.)
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To: RitaOK
Have you met my companion, astigmatism? :)

I think so, but it was all a blur.

31 posted on 05/18/2011 3:31:11 PM PDT by norton
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To: jazusamo

So, what are ya gonna do about it> Beyotch is crooked as the day is long.


32 posted on 05/18/2011 3:45:15 PM PDT by ichabod1 (Hail Mary Full of Grace, The Lord Is With Thee...)
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To: KansasGirl

Democrat Judges never recuse themselves. They are corrupt.


33 posted on 05/18/2011 3:53:59 PM PDT by Roklok
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To: jazusamo

There’s a catch to this - if she does recuse herself, that could mean a split vote. I believe (I have read) that if the vote is split, the lower-court ruling stands...considering there are different rulings at the federal level, it could be tricky.

I’ve been keeping an eye out for this, and assumed that she Would recuse herself...wondering now if this is all the usual kabuki intended to make her look ‘humbled’ if she backs out of the final case?


34 posted on 05/18/2011 4:06:01 PM PDT by DrinkDeep (Drink Deep the water of life (Heinlein))
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To: DrinkDeep

That’s correct, if the SCOTUS vote is tied the appellate court ruling stands.

I doubt very much she’ll recuse herself and also doubt this is a feint. There’s probably a better than 50% chance the appellate ruling will favor tubing obamacare.


35 posted on 05/18/2011 4:12:48 PM PDT by jazusamo (His [Obama's] political base---the young, the left and the thoughtless: Thomas Sowell)
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To: cranked
"...Does this disqualify her from taking part in the SCOTUS decision on ObamaCare once it hits them?..."

Don't think there's a 'disqualifying' action available. The USSC Judges have to recuse themselves .................................. FRegards

36 posted on 05/18/2011 4:39:35 PM PDT by gonzo ( Buy more ammo, dammit! You should already have the firearms .................. FRegards)
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To: RitaOK
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.

Yes, but if the pubbies couldn't even get 41 votes to block cloture on her there is no way in Hell that they will get 67 votes to remove her.

37 posted on 05/18/2011 4:40:47 PM PDT by VRWCmember
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To: Rapscallion
Yes they can but not until they have a majority in the Senate

House impeaches. Senate convicts. The House should impeach her even if they know she wont be convicted. But the first step is to hold House impeachment hearings. they should at least do that.

38 posted on 05/18/2011 4:42:53 PM PDT by plain talk
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To: Rapscallion
Yes they can but not until they have a majority in the Senate

House impeaches. Senate convicts. The House should impeach her even if they know she wont be convicted. But the first step is to hold House impeachment hearings. they should at least do that.

39 posted on 05/18/2011 4:43:14 PM PDT by plain talk
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To: jazusamo

It would be funny if Obamacare lost a vote in the SCOTUS because Obama appointed a judge who has to recuse herself.


40 posted on 05/18/2011 5:14:12 PM PDT by cookcounty (What's with rubbing in all the Anti-Mitch Cream?)
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To: AdmSmith; AnonymousConservative; Berosus; bigheadfred; ColdOne; Convert from ECUSA; Delacon; ...

Thanks jazusamo.
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.

41 posted on 05/18/2011 5:20:13 PM PDT by SunkenCiv (Thanks Cincinna for this link -- http://www.friendsofitamar.org)
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To: KansasGirl

She can be impeached, which won’t happen, and would be after the fact anyway. Recusal is a function of her moral compass.


42 posted on 05/18/2011 5:25:05 PM PDT by SJackson (Normal people don't sit cross-legged on the floor and bang on drums, WI State Sen Glenn Grothman (R))
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To: KansasGirl

>Can the other judges on the Supreme Court force her to recuse herself? Can anyone?

I don’t know.

>Can a Republican majority Congress impeach her?

No, because Republicans [as-a-party] have shown they do not have either the will or the moral-conviction to do so by applying the Constitution.


43 posted on 05/18/2011 5:38:48 PM PDT by OneWingedShark (Q: Why am I here? A: To do Justly, to love mercy, and to walk humbly with my God.)
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To: jazusamo

This ho has no business being on the Supreme Court. The left is out destroy everything American. Including the SCOTUS.


44 posted on 05/18/2011 6:31:29 PM PDT by FlingWingFlyer ("...that they are endowed by their Creator with certain unalienable Rights,..")
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To: jazusamo; justiceseeker93; ExTexasRedhead; Impy; fieldmarshaldj; BillyBoy; JulieRNR21

At the very least, if ObamaCare reaches the Supreme Court, Kagan should be forced to recuse herself.


45 posted on 05/18/2011 7:13:25 PM PDT by Clintonfatigued (Muslims are a people of love, peace, and goodwill, and if you say that they aren't, they'll kill you)
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To: jazusamo

The only reason SCOTUS matters is because the States just roll over and play dead. They do not have any obligation to enforce an unconsitutional law, and SCOTUS (part of the Federal government itself) was never intended to be the final word on what the Feds get to do to us.

That is one thing that roiled the South in the run up to the Civil War. Northern states were nullifying the Fugitive Slave Law that required individuals to hunt down fugitve slaves, whether they wanted to or not, under plenaly of fine and/or imprisonment. Dred Scott answered the controversy, and of course we know how the rest of it went.


46 posted on 05/18/2011 7:16:39 PM PDT by dajeeps
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To: SkyPilot

LOL!! Good one, SkyPlot! :D


47 posted on 05/18/2011 8:22:17 PM PDT by ResisTyr ("Resistance to tyrants is obedience to God " ~Thomas Jefferson)
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To: SkyPilot

LOL!! Good one, SkyPilot! :D


48 posted on 05/18/2011 8:22:26 PM PDT by ResisTyr ("Resistance to tyrants is obedience to God " ~Thomas Jefferson)
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To: SkyPilot
Separated at Birth? Kagan & Lovitz

Photobucket

49 posted on 05/18/2011 8:27:10 PM PDT by ResisTyr ("Resistance to tyrants is obedience to God " ~Thomas Jefferson)
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To: jazusamo

ping


50 posted on 05/18/2011 8:51:41 PM PDT by CriticalJ (Suppose you were an idiot. And suppose you were a member of Congress.. But then I repeat myself. MT)
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