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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?
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?
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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