Skip to comments.Kagan Defended ObamaCare As Solicitor General - Case closed on recusal.
Posted on 01/27/2012 2:47:35 PM PST by neverdem
Until now, those who say Supreme Court Justice Elena Kagan shouldnt recuse herself from the upcoming ObmaCare case, even though federal code clearly requires her to do so, have argued that even though she was President Obamas Solicitor General, she was kept hermetically sealed away from anything pertaining to ObamaCare. This was supposedly done even though the Supreme Court seat she would later occupy wasnt vacant yet a forward-looking move designed to keep her viable for both the Court seat, and the ObamaCare thumbs-up desperately needed by the President in a few weeks.
That excuse always seemed preposterous. Solicitor General Kagan was kept totally out of the loop on the most important legal defense her Administration would ever mount, in order to keep her unsullied for the chance that she might sit on one of the most important cases the Supreme Court would ever hear?
Well, the Kagan firewall just went up in smoke. Fox News reports:
With just weeks until the U.S. Supreme Court considers the constitutionality of President Obama's health care law, there are new calls for Justice Elena Kagan to recuse herself from the case.
Her critics point to a 2010 case regarding a San Francisco health measure, in which then-Solicitor General Kagan's office filed an amicus brief touting the newly passed health care law.
In May 2010, after Kagan had been nominated to the nation's highest court, Principal Deputy Solicitor General Neal Katyal sent her a memo outlining the cases in which she had "substantially participated." Kaytal specifically referenced the Golden Gate case, noting that it had been "discussed with Elena several times."
That's enough to convince Heritage Foundation Senior Legal Fellow Hans von Spakovsky that Kagan shouldn't take part in the current health care case before the high court.
"I don't see how any ethical lawyer adhering to professional codes of conduct could not consider that they need to recuse themselves from this case," he said.
(Emphases mine.) And we all know that Obama appointees hold themselves to the highest ethical standards, dont we?
Kagan defenders have been hilariously reduced to hair-splitting about how the issues in the San Francisco case were so unique that shes still in the clear to rule on ObamaCare in general. We really have degenerated into a banana republic if those arguments are taken seriously.
U.S. code could not be more clear on this issue. The third condition set forth for judicial disqualification reads, in its entirety: Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy.
Until today, Kagans defenders pretended to understand what those words meant. Thats why they so desperately insisted that she never went anywhere near ObamaCare during her Solicitor General days. That argument was absurd, but everyone trying to keep her on the case at the Supreme Court understood it was vital.
There are emails showing Kagan celebrating passage of ObamaCare during her time with the Administration, but thats different, even though many observers find it unseemly. It skirts the edge of the prohibition against personal bias on the part of judges, but the law is less concerned with appearances than with concrete relationships that compromise judicial impartiality, and ruin public trust in the judiciary. Any reasonable person can understand the absurdity of allowing someone who actively argued one side of a case to sit in judgment upon it.
Elena Kagan evidently understands the standards for disqualification, because in December she recused herself from the Supreme Courts hearing of the Justice Department challenge to Arizonas immigration law, precisely because she was Solicitor General when the DOJ suit was filed.
Game, set, match. Theres nothing else for any ethical jurist or lawyer to discuss. Kagan must not rule on ObamaCare.
The fix is in
The appointment in of itself assured that. Don’t know what Kennedy will do.
So what happens if she doesn’t recuse herself? Can the Republican House impeach her?
Case closed in a nation of laws.
We are not in a nation of laws, albeit it is an emerging police state.
Didn’t she flat out lie about it during the Senate confirmation hearings?
What happens if it is 4-4 on the individual mandate? We have had different rullings from the appellate courts.
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Anyway, the rule cited says "he" and Kagan's female so it doesn't apply.
It would seem like the case is closed, but I’ll be shocked if she does recuse.
The list, Ping
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More info here, too:
“Obamacare Litigation: More Golden Reasons Why Justice Kagan May Need to Recuse Herself”
Banana Republic without bananas.
She won’t recuse and no power that we have can make her. Even so, the vote would then just become 4 to 4 just for spite.
I don’t see how any ethical lawyer adhering to professional codes of conduct could not consider that they need to recuse themselves from this case,” he said.
We are talking about ethical lawyers are we not?
I believe that probably lets her out.
It is apparent that anyone on the inside circle of the Obozo or of power and wealth doesn’t need to be concerned about our laws. At the expense of the common citizen, those people are above the LAW. Even John Roberts needs to be b**ch slapped over his stand on this Kagan recusal issue. The Obozo is an illegal president and every justice on that court knows it so they accept two illegal supreme court justices as well. The US is worse than a banana republic. We had the means and the wherewithal to stop the erosion of enforcement of our laws for those of power and wealth but so far we have stood and done nothing.
My mistake, we have started to do something, it’s called the Tea Party. It is not dead as old Harry and the hag would like everyone to believe.
What is the chance that Kagan’s unethical stance will be enough to push Justice Kennedy to be the 5th vote against Obamacare? If he’s on the fence, this might be enough to open his eyes to the left’s open contempt of our founding principles.
Unless she would be hearing an appeal of an particular case in which she participated, I don't think the quoted section would apply (but if such a case does come before her, refusal would obviously be required). If the section were read so broadly as to suggest that her participation on one case involving Obamacare would disqualify her from hearing others, such a reading would also require that when a case comes before the court regarding a matters which the court has previously decided, any judges who were on the court when the previous case was decided would be required to recuse themselves--clearly absurd.
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