Kagangate: A Coverup Of Obamacare Conflict-Of-Interest?

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Judicial Watch and the Media Research Center have obtained potentially explosive e-mails that could prove Supreme Court Justice Elena Kagan provided misleading answers during her Senate confirmation hearings when she said she had no involvement as U.S. Solicitor General in any strategizing over how to defend the health care reform law known as Obamacare. Whether or not she had any such involvement is crucial in determining whether she must recuse herself from cases dealing with the constitutionality of Obamacare.

Moreover, if the evidence does establish Kagan’s involvement as Solicitor General, Justice Kagan may have violated federal law governing recusals. That is because she evidently decided to participate in the decision of the Supreme Court in April 2011 not to “fast-track” for Supreme Court review Virginia’s lawsuit challenging Obamacare.

Federal statute 28 U.S.C. 455 states that a judge must step aside “in any proceeding in which his impartiality might reasonably be questioned” or in which he (or she) “participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy.”

During her Senate confirmation hearings for a seat on the Supreme Court, Elena Kagan denied any substantive personal involvement in connection with her Office of Solicitor General’s provision of legal advice on Obamacare or consideration of litigation strategies to defend Obamacare from constitutional challenges.

The following are responses by Elena Kagan to Supplemental Questions from Senators Jeff Sessions, Orrin Hatch, Charles Grassley, Jon Kyl, Lindsey Graham, John Cornyn, and Tom Coburn:

Question: Have you ever been asked about your opinion regarding the underlying legal or constitutional issues related to any proposed health care legislation, including but not limited to Pub. L. No. 111-148, or the underlying legal or constitutional issues related to potential litigation resulting from such legislation?

Response: No.

Question: Have you ever offered any views or comments regarding the underlying legal or constitutional issues related to any proposed health care legislation, including but not limited to Pub. L. No. 111-148, or the underlying legal or constitutional issues related to potential litigation resulting from such legislation?

Response: No.

Kagan told the Senators that she would recuse herself from any Supreme Court case involving a matter in which she “participated in formulating the government’s litigating position… If I gave advice about the government’s litigating position or the content of a filing, then I would recuse myself from the case. In my view, this level of participation in a case would warrant recusal.”

But a series of “smoking gun” e-mails obtained by Judicial Watch and the Media Research Center pursuant to a Freedom of Information Act (FOIA) lawsuit filed on February 24, 2011, reveal that Kagan positioned her Solicitor General Office (OSG) to be involved in the strategy to defend Obamacare from the very beginning.

In an e-mail (“Re: Health Care Defense”), authored by Kagan’s deputy Neal Katyal and dated January 8, 2010, Katyal responded to an e-mail from his Department of Justice colleague Brian Hauck, Senior Counsel to Associate Attorney General Thomas Perrelli, who had suggested that a group be put together to think about “how to defend against inevitable challenges to the health care proposals that are pending.”

Katyal wrote back enthusiastically within three minutes of receiving the e-mail from Brian Hauck:

“Absolutely right on. Let’s crush them. I’ll speak with Elena and designate someone.”

Within a half a minute of responding to Hauck’s e-mail, Katyal fired off another e-mail directly to Kagan: “I am happy to do this if you are ok with it.”

Four minutes later, Kagan responded: “You should do it.”

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  • Lfox328

    I'm going to be practical. Although there may be evidence that would lead to cries for impeachment if Kagan were appointed by a Republican, it just ain't gonna happen. She's Democratic, she's a woman, and she's gay. That's the trifecta for immunity.

  • DogWithoutSlippers

    Amazing how PC BS is the rule! American is in deep trouble for we have lost our way. The People have become the meal ticket for greedy politicians and the fodder for those who seek to change and destroy our way of life.

  • geez

    What a shocker that an Obama nominee is a liar. I'm so shocked! I'm sure she/he will step down in total humiliation… yeah right.

  • Steve Chavez

    Kagan gave the key note address at the University of New Mexico law school graduation last week. I have been calling the media, and the law school, to find out how much she cost the university.

    Just last month, there were organized student and professor protests at Regents meetings and any meeting dealing with the budget short fall and the rise in tuition and cuts to departments. They also disrupted meetings with chants and holding up signs.

    Then I found out from a source that Kagan cost "around $34,000." This included all her expenses like first-class airline tickets, the presidential suite, meals (All You Can Eat), and a reception for hundreds of guests and graduates. I wrote a comment in our local news website about her fees that were included in the amount and someone wrote back that she's not allowed to charge a fee. But after trying to get a correct number, and to get the local media, including the university newspaper, the "$34,000" is unverified.

    I go to the law school on occasion and there are locked cases with flyers and class announcements. The majority of the space is reserved for ACLU and NLG recruitment flyers!

  • jacob

    Well, I feel it is time to pick up this banner and show OBAMA and his trained
    Congress seals who is truly boss and kick this woman out if she doesn't
    resign on her own, as I bet OBAMA won't allow her to, in spite of her being,
    as LFOX328 above pointed out, a Democrap, a woman and gay….

    Or is it that we have now the government of the freaks of nature gays are ????

    • ajnn

      There are plenty of problems highlighted here about Kagan without referring to her sexual orientation.

      I am very concerned that a SC Justice has lied under oath to Congress. I don't care about her sex life.

  • OLJingoist

    The corruption to everything touched by this regime is astounding.
    We await the 2012 election to address these problems.
    The only problem I see is that, in my opinion, the poser has no intentions of standing for re-election, his coup will have succeeded by then.
    There is not one federal agency that has not changed its mission (with the help of czars) to a mission of trying to rule us by regulation if they can't pass the law they want, they regulate.
    The takeover of our government is in the latter stages of execution. And still the sheeple sleep.

  • kblink45

    The crucial point will prove to be whether she actually engaged in formulating strategy or whether she was merely complicit in setting up meetings. Strategizing about strategizing reveals a predisposition, but it doesn't violate the law.

  • Spider

    Why is it that most of the judges nominated by republicans seem to be level headed, logical, moral, thoughtful and eminent legal scolars and those that are nominated by democrats are for the most part idealogues or circus freaks ? Kagen I believe is both.

  • billinthesprings

    Every little thing this admini … REGIME does stinks to high heaven. If we don't vote them out in '12, we as a nation will be "counted out" by '16. How fragile our freedom is when the electorate is so totally ignorant!

  • paddydonovan

    Not surprised at all. Maybe if we beat the drum loudly the media will have to cover the story. They have been going after Judge Thomas's wife for awhile now even though one of the ACLU brass had a souse on the 9th court. Hypocrites, all of them

  • Jim_C

    Oh my gosh!!!! Such "corruption!"

    Good luck with this one…Zzzzzzzzzzzzzzzz.

    • 93Metro

      It's the core that matters and you seem to not care……..

  • Alfonz Shmedlap

    Tu., 05/24/11 common era

    Elena Kagan probably couldn't fix a parking ticket for the Pope. Nevertheless, she is part of the Ivy League Elite that thinks that it knows what's best for us commoners.
    She helped to establish a sharia law department at Harvard Law School. She abhors the 2nd Amendment. One would think that as a Jewish lesbian, she would know better.
    Ah, but she's Ivy League; that's what's truly important.

  • Robert

    I speak from the point of view of a retired judge.

    The question of recusal is not premised on on the judge's guilt. That Justice Kagan may possibly be biased, is not relevant provided it is such as may be overcome.

    While, of course, all these facts may be relevent, the controlling factor is "The Appearance of Impropriety." The final question may be posed in this way. An investigation shows that the judge has not compromised her ability to rule on the law. However, there is no question under the circumstances, in light of the emails, and also in light of her writing on the subject and the Administration confirming her to the Supreme Court's refusal to disclose it, that and "Appearance of Impropriety has been created sufficient to require her recusal."

    Recusal is not intended to be punishment of a judge. Recusal exists to protect and preserve the public perception that justice is fairly and impartially being administered.

    Of course, if Justice Kagan has participated in the construction of a defense to Obamacare and lied about it in her confirmation then the only remedy is impeachment.

    There is, of course, no legal reason, or presidential privilege justifying President Obama's refusal to produce her additional writing on the subject; indeed, his conduct contributes to the creation of an Appearance of Impropriety.


    • http://americanpatriotcouncil.com/ Mike in VA

      Thanks for your insights, Judge.

      In my mind, the president's actions most certainly arouse suspicion and contradict his and his party's campaign promises concerning transparency…

    • ajnn

      Well stated.

      Od course she must recuse herself. I think she should recuse herself from everything related to the administration that nominated her.

      However, the lying to Congress is very serious and is evidence of 'unfitness'.

  • Robert

    Whether Obama care will be imposed on 300 million Americans will depend on the vote of a single Supreme Court Justice, more than likely Justice Kennedy the Justice who just ordered the release of 46,000 prisoners in California.

    Such power concentrated in one man has nothing to do with Democracy or Constitutional Government.

    And it is a meek bunch of Americans who tolerate this concentration of power.


  • Patrick49

    Lying under oath during a Congressional hearing is grounds for a perjury charge, ask Roger Clemens. The "No" answers by Kagan should be investigated fully by the Senate.

    • ajnn

      Good point.

      I cannot believe the waste represented by the Congressional hearings on baseball. But, having held them, perjury must be prosecuted.

      Waste leading to bad policy. Yuchhh.

  • Jeffry Morehouse

    The Satanists, The Demoncrapic Party, never question their own EVIL, and the Milk toasts of the Republican Party, STAND for passivity

  • lolconservatives

    FrontPageMag just making stuff up as it goes along. You guys have a nice devoted readership that doesn't know what the hell is going on, so let's just make stuff up!

    Obama wins in 2012, because the worthless people who read this website would rather argue about voter ID cards and gay marriage than anything else.

    • http://www.lethalengagement.com Joseph Klein

      So you just want to pretend that the referenced e-mails disclosed by the Obama administration under the Freedom of Information Act are not real. Typical left-wing revisionism.