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Leading senators: Kagan may have to recuse herself from health case
The Washington Times ^ | November 18, 2011 | Stephen Dinan

Posted on 11/18/2011 4:30:01 PM PST by jazusamo

Top Republican senators said late Friday the Justice Department has been stonewalling their request for more information on Supreme CourtJustice Elena Kagan, and said her previous work as solicitor general “may satisfy both requirements for recusal” from the upcoming health-care case.

The senators, led by Minority Leader Mitch McConnell, are demanding Attorney General Eric H. Holder Jr. comply with requests for more documents about Justice Kagan’s role in planning the administration’s defense, and said unless he provides the information it could undermine confidence in the court’s eventual ruling on the case.

“President Obama chose to nominate a member of his administration to the Supreme Court knowing it was likely that, if confirmed, she would be in a position to rule on his signature domestic policy achievement,” said the four senators, who also included Senate Minority Whip Jon Kyl of Arizona; Sen. Chuck Grassley of Iowa, the ranking Republican on the Judiciary Committee; and Sen. Mike Lee of Utah.

The Supreme Court announced early this week that it would hear a challenge to the health-care law, which Mr. Obama signed last year. Questions have floated for months over whether Justice Kagan could rule impartially in the case. She was solicitor general at the time the law passed, and acknowledged during her confirmation hearing that she attended at least one meeting where litigation was discussed.

(Excerpt) Read more at washingtontimes.com ...


TOPICS: Government; News/Current Events
KEYWORDS: kagan; obamacare; recusal; scotus

1 posted on 11/18/2011 4:30:04 PM PST by jazusamo
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To: jazusamo

She should absolutely not be sitting on this case. She’s 100% conflicted.


2 posted on 11/18/2011 4:32:56 PM PST by pieceofthepuzzle
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To: pieceofthepuzzle

Your right. but..

She will.


3 posted on 11/18/2011 4:33:41 PM PST by cableguymn
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To: pieceofthepuzzle

“She should absolutely not be sitting on this case. She’s 100% conflicted.”

She ain’t conflicted at all...that’s the problem.


4 posted on 11/18/2011 4:34:33 PM PST by jessduntno ("They say the world has become too complex for simple answers... they are wrong." - RR)
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To: jazusamo

May? She should not be sitting on the court when this is heard.


5 posted on 11/18/2011 4:34:54 PM PST by freekitty (Give me back my conservative vote; then find me a real conservative to vote for)
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To: pieceofthepuzzle

She’s not conflicted at all. One needs a conscience for that. She is a democrat. They have seared their conscience long ago.


6 posted on 11/18/2011 4:35:53 PM PST by Pilgrim's Progress (http://www.baptistbiblebelievers.com/BYTOPICS/tabid/335/Default.aspx)
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To: jazusamo

Yeah, we’ll wait for that to happen.


7 posted on 11/18/2011 4:36:02 PM PST by sixgunjer
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To: jazusamo

Recusal is the prerogative of the individual justices. She will never step away from this one. They know the furor will be temporary and the media will give her a pass.


8 posted on 11/18/2011 4:36:06 PM PST by Baynative (The penalty for not participating in politics is you will be governed by your inferiors.)
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To: pieceofthepuzzle

Agreed and I’ll go one step further, she’s an activist judge that shouldn’t be on the SCOTUS bench.


9 posted on 11/18/2011 4:36:10 PM PST by jazusamo (The real minimum wage is zero: Thomas Sowell)
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To: jazusamo

Obama knew the conflict when he nominated her. If he says he did so expecting her to recuse herself then she should recuse herself. If Obama says he did not expect her to recuse herself for such an obvious conflict of interest then Obama should be impeached.


10 posted on 11/18/2011 4:36:44 PM PST by plain talk
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To: Baynative

I agree, she’ll never recuse herself.


11 posted on 11/18/2011 4:37:39 PM PST by jazusamo (The real minimum wage is zero: Thomas Sowell)
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To: jazusamo

The decision to recuse is up to the judge himself/herself and I would be highly surprised if she did that on this case. After all, the reason Obama put her on the court was to rubber stamp his policies.


12 posted on 11/18/2011 4:38:32 PM PST by Signalman
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To: jazusamo
Her voting for Obamacare is the very reason that she was nominated for the court in the first place.
13 posted on 11/18/2011 4:38:59 PM PST by fhayek
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To: plain talk

You’re dead on the money. This is but one thing Obama should be impeached for though.


14 posted on 11/18/2011 4:40:11 PM PST by jazusamo (The real minimum wage is zero: Thomas Sowell)
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To: plain talk
Because of two characteristics Barry bassturd has, he is unimpeachable. There is not any behavior he could commit which would result in impeachment and removal. None.
15 posted on 11/18/2011 4:40:32 PM PST by MHGinTN (Some, believing they cannot be deceived, it's impossible to convince them when they're deceived.)
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To: Baynative

She can be impeached and put up for trial in the senate and then removed from office. A conflict of interest would be an impeachable offense. Would boner and. Cantor do it, hell no.


16 posted on 11/18/2011 4:42:01 PM PST by org.whodat (Just another heartless American, hated by "AMNESTY" Perry and his fellow demorats.)
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To: jazusamo

It won’t matter. The remaining 3 liberals will vote to uphold, the 4 conservatives will vote to strike down, Kennedy will be the swing vote. If it is 4-4 the law stands.


17 posted on 11/18/2011 4:42:24 PM PST by FewsOrange
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To: FewsOrange
I actually think the notion that the commerce clause applies to your body won't sit well with Kennedy. I say it gets struck down 5-4.
18 posted on 11/18/2011 4:49:13 PM PST by jpf (phillies)
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To: jazusamo
"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.”

http://www.judicialwatch.org/news/2011/may/documents-raise-questions-about-supreme-court-justice-kagan-s-role-obamacare-defense-s

19 posted on 11/18/2011 4:56:54 PM PST by Qbert ("The best defense against usurpatory government is an assertive citizenry" - William F. Buckley, Jr.)
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To: Qbert

Thanks for linking. This shows she was darn well in it.


20 posted on 11/18/2011 5:00:19 PM PST by jazusamo (The real minimum wage is zero: Thomas Sowell)
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To: jazusamo

Nobody pays any attention to McC except the Kentuckians, who think he is “in charge” up there.


21 posted on 11/18/2011 5:04:38 PM PST by Theodore R.
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To: jazusamo

My pleasure.

Not only was she in on it- but it strongly appears that she was covering her tracks and coaching her colleagues in the DOJ about what to say/not say about her involvement with the defense. Really, really shady.


22 posted on 11/18/2011 5:10:35 PM PST by Qbert ("The best defense against usurpatory government is an assertive citizenry" - William F. Buckley, Jr.)
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To: FewsOrange
If it is 4-4 the law stands.

No, if it is 4-4 the decision being appealed stands. The nlower courts are split, so a 4-4 vote would mean that the Act is constitutional in some Circuits and not others.

23 posted on 11/18/2011 5:16:56 PM PST by Lurking Libertarian (Non sub homine, sed sub Deo et lege)
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To: FewsOrange

If it is a 4-4 tie, the lower court’s decision stands.


24 posted on 11/18/2011 5:36:51 PM PST by ALPAPilot
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To: Lurking Libertarian; ALPAPilot

http://en.wikipedia.org/wiki/Procedures_of_the_Supreme_Court_of_the_United_States#Tied_votes_and_lack_of_quorum


If not all of the nine justices vote on a case, or the Court has a vacancy, then there is the possibility of a tied vote. If this occurs, then the decision of the court below is affirmed, but the case is not considered to be binding precedent. The effect is a return to the status quo ante. No opinions are issued in such a case, only the one-sentence announcement that “[t]he judgment is affirmed by an equally divided Court.”

Yep, looks like you’re right. So without Kagan there is no chance of the law being upheld and hence no chance of Kagan recusing herself


25 posted on 11/18/2011 5:45:09 PM PST by FewsOrange
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To: jazusamo

More proof that we are living in a FREAK show.


26 posted on 11/18/2011 6:00:16 PM PST by bimboeruption (Clinging to my Bible and my HK.)
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To: jazusamo

27 posted on 11/18/2011 6:29:56 PM PST by C210N (zer0 - a Marxonist spreading the flames of obamunism wherever he goes.)
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All contributions are for the Current Quarter Expenses.
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28 posted on 11/18/2011 6:37:52 PM PST by RedMDer (Forward With Confidence!)
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To: jazusamo
"... there is a strong conflict between the Thomas household’s financial gain through your spouse’s activities and your role as an associate justice of the United States Supreme Court,” dozens of Democrats said in a letter to Justice Thomas earlier this year

What is this "financial gain" that Justice Thomas is supposed to be getting from his wife's "activities" -- according to Dems?

Can anyone 'splain that to me?

29 posted on 11/18/2011 6:42:04 PM PST by shhrubbery!
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To: pieceofthepuzzle

she also committed a crime against the Supreme Court during the partial birth abortion case by altering statements made by physicians to mean the exact opposite of what they stated.

She should have been disbarred long ago.
That she was nominated and even approved is a disgrace.


30 posted on 11/18/2011 6:48:25 PM PST by Scotswife
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To: ALPAPilot

wouldn’t this more likely make the vote 5-3?


31 posted on 11/18/2011 6:50:07 PM PST by Scotswife
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To: jazusamo
May have to? By law, she is required to recuse herself.

(And then there's that little perjury thing during her confirmation hearings)

32 posted on 11/18/2011 6:50:32 PM PST by Hoodat (Because they do not change, Therefore they do not fear God. -Psalm 55:19-)
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To: shhrubbery!

I can’t think of a thing or shed any light on how there could be any financial gain, it’s a typical leftist attack on the both of them.


33 posted on 11/18/2011 6:51:58 PM PST by jazusamo (The real minimum wage is zero: Thomas Sowell)
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To: Hoodat

Absolutely right, but then leftists don’t believe the law pertains to them.


34 posted on 11/18/2011 6:54:40 PM PST by jazusamo (The real minimum wage is zero: Thomas Sowell)
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To: Lurking Libertarian

The case at hand is the Florida case (11th Circuit) and not the Virginia case (4th Circuit). Correct me if I am wrong, but the 11th Circuit Court of Appeals in Atlanta struck it down. so that decision will stand without a fifth vote in favor of overturning the appellate decision. I don’t believe the Supreme Court has agreed to hear the Virginia case yet. Are you saying that a 4-4 decision will mean that it remains unconstitutional in the 11th Circuit only? Or will it apply in all 26 states that brought the suit?


35 posted on 11/18/2011 6:57:54 PM PST by Hoodat (Because they do not change, Therefore they do not fear God. -Psalm 55:19-)
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To: jpf
I actually think the notion that the commerce clause applies to your body won't sit well with Kennedy. I say it gets struck down 5-4

I agree with you on Kennedy and Kagan will never ever recuse herself, as someone else has already stated, it's the reason she is an S.C. Justice to begin with.

36 posted on 11/18/2011 7:20:38 PM PST by Graybeard58 (Of course Obama loves his country but Herman Cain loves mine.)
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To: All


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37 posted on 11/18/2011 7:21:30 PM PST by musicman (Until I see the REAL Long Form Vault BC, he's just "PRES__ENT" Obama = Without "ID")
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To: FewsOrange
So without Kagan there is no chance of the law being upheld and hence no chance of Kagan recusing herself

What makes you think Scalia and Kennedy will vote against the whole package? Scalia gave full-throated endorsement to the expansive New Deal Commerce Clause in Raich. He and Kennedy are 100% on board with fedgov control of health care.

38 posted on 11/18/2011 7:24:34 PM PST by Ken H (They are running out of other people's money. )
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To: Scotswife
“That she was nominated and even approved is a disgrace.”

One of many consequences of having a president whose actions are dictated by a very immature and erroneous world view. Anyone who believes that all the social ills of the country are the consequence of selfish rich people and racist Caucasian men is pathetically and dangerously ill informed. Obama appears to fall into that camp.

39 posted on 11/18/2011 7:26:20 PM PST by pieceofthepuzzle
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To: jazusamo

Oh, yeah? Force me! Nanny, nanny, nanny! We got such perfect Constitutional system (as you all say)! HA! Force me, you fools!


40 posted on 11/18/2011 7:27:32 PM PST by Revolting cat! (Let us prey!)
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To: jazusamo
She won't.

Her loyalty and unwavering support of Obamacare is the reasson she was appointed in the first place.

41 posted on 11/18/2011 8:15:35 PM PST by sjmjax (Politicans are like bananas - they start out green, turn yellow, then rot.)
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To: jazusamo

This is the reason why we need a Monarchy. Because who can check such abuses of power? (to anticipate: the Monarch’s decision can be overriden by the legislature.)


42 posted on 11/18/2011 8:18:04 PM PST by Revolting cat! (Let us prey!)
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To: Revolting cat!
You lost me there. Without judicial review, Obamacare would be the law of the land until rescinded by Congress.

With SCOTUS ruling on it, there is at least the possibility it will be declared unconstitutional.

How would we be better of without a court review of the law?

43 posted on 11/18/2011 9:35:37 PM PST by Ken H (Austerity is the irresistible force. Entitlements are the immovable object.)
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To: jazusamo
Grow ‘em BIG and fast ‘pubs. Play hard and tight. How do you think it would go if the situation was reversed?

Dems would be relentless and merciless. Their media hounds would fan the flames and as usual...they would get their way. I am tired of these punks winning.

START PLAYING HARD BALL! And don't quit until the B******S squeal.

44 posted on 11/18/2011 9:46:00 PM PST by Awgie (truth is always stranger than fiction)
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To: jazusamo

If She doesnt recuse herself the Courts Credibility will be undermined? OH NO NOT THAT! Oh the Humanity,I dont know if The Country can handle that,we are about to go over a Cliff ,total Collapse and Kagan wont recuse herself .The Democrats are shaking in their Boots


45 posted on 11/19/2011 5:46:34 AM PST by ballplayer
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To: jazusamo
I can’t think of a thing or shed any light on how there could be any financial gain, it’s a typical leftist attack on the both of them.

Well thank you for at least trying to think of a logical answer!

Even Greta van Susteren, who is normally reasonable, was parroting this line on her show a few nights ago.

Even more perplexing was the consensus of Greta's panelists -- that it would be a good thing for Justices Thomas and Kagan to both recuse themselves, partly because that would make the numbers "fair" (i.e. their absences would "cancel each other out").

Greta and her panelists are all law school grads. How can they be so absurdly stupid?

46 posted on 11/19/2011 10:52:24 AM PST by shhrubbery!
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To: Ken H

The question before us is who reviews the judiciary? What can be done when Kagan won’t recuse herself?


47 posted on 11/19/2011 11:27:03 AM PST by Revolting cat! (Let us prey!)
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To: shhrubbery!

Greta is a democrat. That is how it makes sense to her for Thomas to be excluded along with Kagan. She does not want the conservatives on the court having an advantage after her side rightly loses Kagan.

There is no logical comparison to Kagan’s conflict of interest in her role as a legal advisor to the Obama administration on the health care bill and Thomas whose wife demonstrated an opinion about Obamacare. Justices are permitted personal opinions about life in America!


48 posted on 11/19/2011 11:34:18 AM PST by SaraJohnson
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To: Revolting cat!
The only check on SC justices is the impeachment process. The only check on SCOTUS decisions is a constitutional amendment.

What changes do you propose to the Constitution to better review the judiciary?

49 posted on 11/19/2011 11:44:34 AM PST by Ken H (Austerity is the irresistible force. Entitlements are the immovable object.)
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To: Ken H

My proposal, like all proposals here, is a pipe dream, so why even bother.

But we do have a dead end here, don’t we, even with the Constitutional remedies you list, as Kagan and everyone else knows that she’ll never be impeached. Imperial court, that’s what it is.


50 posted on 11/19/2011 11:58:12 AM PST by Revolting cat! (Let us prey!)
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