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.
Perhaps instead of saying "on the court", I should have said "heard the previous case". If a case comes before a court which is similar to one that it has already decided, any judges who were involved in the previous case may easily have a stronger-than-proper attachment to whatever decision they made there, and attempt to apply it to the new case whether or not it is really applicable; nonetheless, I really don't see lawyers on either side arguing that issuance of decisions on earlier cases should preclude a judge from hearing later related ones.
Are you sure....?
I hesitated before writing that, but I assume she has "F" on her driver's license.
That is, assuming Massachusetts limits the options to "M" and "F." Not having lived there, I don't know for sure.
The chief justice said last week that he is confident in the justices discernment..blah blah blah. My guess is that they already know that it will be a majority against Obama. Most courts have ruled that way. Kagen will recuse knowing that her vote will not matter, because Most likely Obama will not be president and she has the rest of her life to be one of the supremes. I have read stories that she had been hanging out with scalia and family. You are one of a few of entire branch of government. Very exclusive club. These people are intellectual giants around you on the law. My guess is she is humbled and will play it out like i said. It is the best way she can handle it for her future.
Thanks for the ping!
There is no severability clause in the legislation, so if the individual mandate is deemed unconstitutional, the judges could declare the entire law unconstitutional making repeal unnecessary. SCOTUS will have to address that in their decision.
“I have read stories that she had been hanging out with scalia and family.”
That would be very disappointing. I never thought Scalia to be the sort of man who would allow a vile reprobate like that anywhere near his family.
The operative word there is “could.” Yes, if SCOTUS declares the individual mandate unconstitutional, it could strike down the entire law given that it’s such a central part of the entire scheme (and without it the requirement that health insurance cover preexisting conditions will drive every insurer to bankruptcy), but that’s not what the circuit court did.
Speaking for the vast majority of us that are Vile Reprobates in need of redemption....I’m curious, if you were Scalia, (a man that is serious about his faith, and trying to live as Christ would...) and you had the chance to create an authentic friendship and show the Love of Christ to Kagen, would you do it?
I will write loudly so that you can hear me way up there on your high horse.
Speaking for the vast majority of us that are Vile Reprobates in need of redemption
The sole basis for your scolding is your assertion that youand by extension Iare in a class with scumbags like Kagan, and, I suppose, Chairman Maobama and the endless parade of filth to which the demonrats have subjected us since FDR.
While it is true that all fall short, and all are sinners, a sweet little old ladys lack of charity for young women who come to Church dressed like naughty ladies of the evening is *far, far, far* from the despicable scumbagitude of a leftist.
All leftist thought, from the limousine liberalism of a George Clooney to the mass murders of Mao, Stalin, or Pol Pot, is of and from Satan. It is a contaminant in the human cognosphere, not a natural component of it. I have no reason to think that you regularlyor evercommit sins as grave as a leftist like Kagan does with her every thought.
I therefore reject the notion that you are within light-years of being as foul a filthbucket as Kagan. I further assert that no one not a leftist is as foul as that.
....Im curious, if you were Scalia, (a man that is serious about his faith, and trying to live as Christ would...) and you had the chance to create an authentic friendship and show the Love of Christ to Kagen, would you do it?
That attack-disguised-as-a-question presumes that such a chance existed.
No leftist is *ever* a friend of someone not a leftist. Leftists are leftists before all else. They may pretend friendship, but the moment that pretense becomes inconvenient, out the window it goes.
I dont doubt for a moment that Scalia is a better man than I, but regarding any friendship with Kagan, I would have to say to him, If you lie down with dogs, you get up with fleas.
As far as showing the Love of Christ to Kagan, and skipping over for the moment how bad an example I am, it was swine like Kagan before whom Christians are enjoined not to cast their pearls.
If you have a bucket of clean water and a drop of sewage, and you drop the sewage into the water, what do you have then?
A bucket of sewage.
It is in large part by following that logic that leftists have taken control of so much in our country, and I would be much less surprised to learn that Kagan had distorted Scalias vision on a principle than to hear that Scalia had broken down the ramparts of illogic that protect her prejudices.
LUKE 18:10 The Parable of the Pharisee and the Tax Collector
9To some who were confident of their own righteousness and looked down on everybody else, Jesus told this parable: 10Two men went up to the temple to pray, one a Pharisee and the other a tax collector. 11The Pharisee stood up and prayed abouta himself: God, I thank you that I am not like other menrobbers, evildoers, adulterersor even like this tax collector. 12 I fast twice a week and give a tenth of all I get.
13But the tax collector stood at a distance. He would not even look up to heaven, but beat his breast and said, God, have mercy on me, a sinner.
14I tell you that this man, rather than the other, went home justified before God. For everyone who exalts himself will be humbled, and he who humbles himself will be exalted.
Ah, I see that you cannot in fact hear me way up there on your high horse.
Okay. Done now.
I have no idea where you are getting this “high horse” idea. All I am saying is as much as we do not like the left, we also need to allow that at any moment any of those people could change.... and like it or not, inside, we all want that chance to be redeemed ourselves. Especially me, and I imagine....Even you....
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