Skip to comments.Sen. Jeff Sessions: Kagan Must Recuse Herself from Obamacare Case
Posted on 02/24/2012 6:05:23 AM PST by SeekAndFind
As solicitor general of the United States, Justice Elena Kagan served as the head of an office responsible for formulating the Obama administrations legal defense of its domestic agenda priority Obamacare. It could be no surprise to President Obama who appointed her to the Supreme Court that any former solicitor general would have many conflicts for years to come. Now, the Court will soon hear a constitutional challenge to the health-care law. Despite mounting evidence of her substantial participation in the administrations legal defense of that law, she still has not announced whether she will recuse herself from presiding over the case as a justice.
According to Section 455(b)(3) of Title 28 of the U.S. Code, justices must disqualify themselves in cases where they have 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 or controversy. In United States v. Gipson, the Tenth Circuit held that judges must recuse themselves if they have previously taken a part, albeit small, in the investigation, preparation, or prosecution of a case. Other courts have suggested that, merely by virtue of a lawyers position as the head of an office during the preparation of a case, he or she is disqualified to sit as a judge on that case. For example, several U.S. Circuit Courts of Appeal have held that U.S. attorneys who later become judges must recuse themselves from any proceeding that had been pending in any way in their offices, even if they were not substantively involved.
Previously undisclosed e-mails that the Justice Department has released pursuant to court order demonstrate Kagans direct involvement in the administrations defense of the presidents health law from the very beginning. In January 2010, she assigned her chief and only political deputy, Neal Katyal, to the matter the legal equivalent of a firms senior partner delegating work to a junior associate. That same month Katyal wrote in an e-mail to the associate attorney generals office that Elena would definitely like OSG [Office of Solicitor General] to be involved in this set of issues. These actions alone constitute personal participation in the preparation of the case, and that is all §455(b)(3) requires to trigger mandatory recusal.
Kagan herself has admitted that she attended at least one meeting in which the case now before the Court was mentioned, but the e-mails show that she also was privy to discussions of the administrations litigation strategy at least up until the announcement of her nomination on May 10, 2010. On March 18, Katyal e-mailed Deputy Attorney General Tom Perrelli and copied Kagan, discussing in detail and providing an Internet link to a draft complaint in potential litigation. He wrote: For what it is worth, my advice (I havent discussed this with Elena, but am ccing her here) would be that we start assembling a response, [material redacted] so that we have it ready to go. And at least one e-mail suggests that discussions of litigation strategy were deliberately not conducted in written form. On March 21, Katyal e-mailed Kagan to ask whether she would attend a key White House meeting on health-care litigation strategy. Kagan responded: Whats your phone number? These actions further support the need for her recusal.
It appears that Kagan and Katyal were cognizant of the recusal issue. On May 17, Katyal forwarded Kagan an e-mail he had just sent to Justice Department spokesperson Tracy Schmaler, in which he falsely asserted (as the previous e-mails show) that Kagan has never been involved in any of it [health-care litigation]. Ive run it for the Office, and have never discussed the issues with her one bit. Ironically, Kagan responded minutes later to both Katyal and Schmaler: This needs to be coordinated. Tracy, you should not say anything about this before talking to me.
Some have attempted to manipulate this legal analysis by seeking to equate the facts surrounding Kagans prior involvement in the health-care case with an entirely different set of facts regarding Justice Thomas wifes former employer, which took a position on the constitutionality of Obamacare after she left the organization. But those allegations bear no relationship to any legal standard for recusal, and are so specious that they have been rejected by scholars and legal commentators across the ideological spectrum. Justice Breyer summarily dismissed this as a false issue.
Recusal due to previous participation in a case is not an admission of wrongdoing, but rather an expected consequence when a government lawyer accedes to the bench. Indeed, Justice Thurgood Marshall the last solicitor general to become a justice, and the justice for whom Kagan clerked recused himself from 98 of the 171 cases decided by the Court in his first year, and most of them were cases in which the federal government was a party.
Justice Kagan has recognized that her involvement as solicitor general in the preparation of the governments challenge to Arizonas immigration law prohibits her involvement in that case as a judge even though the lawsuit was not filed until two months after she ceased performing the duties of her office due to her nomination, and even though she testified that she was not asked to express an opinion on the Arizona law. In contrast, Justice Kagans involvement in the preparation of the governments defense of the health-care law began at least as early as January 2010, four months before her nomination and two months before the bill became law. That she would not follow the same course in the health-care case is dubious. These facts require recusal.
Senator Jeff Sessions is a senior member of the Judiciary Committee.
It is always safe to posture when you are sure you will have no effect on the outcome. Jeff’s conservative credentials are a bit tarnished lately so he has to make noise, again.
She will NOT recuse from Obamacare, nor will Roberts take a position to have her removed from it. Likewise, all Illegal Alien cases will be heard by Sotomayor, and she will rule ALWAYS in favor of the Illegals, however she has to contort her response.
Who is going to make her?
Leftists are “above suspicion” don’t you know.
Like Issa on Holder, he wasn’t going to actually do anything
“It is always safe to posture when you are sure you will have no effect on the outcome. Jeffs conservative credentials are a bit tarnished lately so he has to make noise, again.”
LOL. Sen. Sessions was basically the only Senator consistently hammering the dims for a lack of budget while McConnell and Boehner did their lily-livered tip toe routine. FRiend, Sen. Sessions is not the problem.
You idiot Freepers are forgetting ... Kagan may have attended a few meetings but she doesn't recall anything that was said ... so the dictatorial lunk-headed fire plug is completely in the clear.
Here’s my prediction:
I already know who will vote FOR Obamacare and I know who will vote against it.
FOR: Kagan, Sotomayor, Breyer, Ginsberg
AGAINST: Thomas, Scalia, Roberts, Alito
In the end, it will all IN EFFECT, boil down to the decision of one person: Anthony Kennedy.
And it will all depend on which side of the bed he wakes up on that day.
So, to those of you who decide to stay home because your favorite POUTS candidate isn’t running or won’t be the candidate, THINK ABOUT THE IMPLICATIONS OF ANOTHER OBAMA TERM and MORE JUSTICES HE WILL APPOINT.
she should absolutely recuse herself, but she just another obama crook from Chi-town who has no morals or shame
The woman is a glittering jewel of collosal ignorance.
Were there any standards in the world, she would be required to recuse herself from anything save for the most simple street cleaning work.
Chief Justice explicitly poo-pooh’d any talk of a Kagan recusal a month ago, more or less.
I was thinking the same exact thing... election year and all of that. He started as a staunch conservative but trent lott infected him.
mitt would appoint the same damn people.
Republicans should start moving bills requiring the American people to buy Moon Pies or Chevy Volts or something. Rub it under their noses before the hearings start.
Your advice, sadly is wasted on most Freepers.
Dream on Jeff.
So Jeffy-boy, whatd’ya gonna do about it when doesn’t recuse herself?
What was that? You said, “Nothing.”?
That’s what I thought you said.
Never gonna happen. She’s an Obama lackey, thru and thru.
Rhenquist was forced to recuse himself from the case regarding Nixon’s tapes - Rhenquist worked for Nixon Justice Department.
but the rules are different for the socialists
Quick question about her recusal, and your prediction. If she would recuse herself, that would only leave 3 Justices certainly for it. We would have 4 certainly against it, but it would still leave the final vote to Kennedy. Wouldn't a 4-4 tie effectively uphold the law?
All I hear jeff Sessions saying is blah, blah, blah.
Same exact sh*t as Issa.
And I lost all respect for him when he did. His argument basically amounted to we have he ability to remain impartial and decide correctly even when a conflict is present. Great, except that’s not how it is supposed to work. The whole idea behind recusal and conflict (in the Law) is that even the appearance of conflict should be cordoned off such that no claim of conflict could be made.
Kagan and Roberts are basically crapping on a central tenet of the law that gives it a claim to impartiality and thus fairness. It is setting a double standard that does irreparable harm to justice.
bump for later reading
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