Justice Elena Kagan’s Conflict of Interest

Supreme Court Justice Elena Kagan

CNSNews has reported that Supreme Court Justice Elena Kagan, an Obama appointment, and Harvard Law Prof. Laurence Tribe discussed the pending health-care vote, according to documents the Department of Justice released late Wednesday to the Media Research Center.

The date was Sunday, March 21, 2010, the day the House of Representatives passed Barack Obama’s Patient Protection and Affordable Care Act and Kagan was Solicitor General and Mr. Tribe was then serving in the Justice Department. The discussion was carried on in an email exchange (Pdf. heavily redacted)

The subject of the email stated: Re: fingers and toes crossed today!

“I hear they have the votes, Larry!! Simply amazing,” Kagan said to Tribe.

According to 28 USC 455, a Supreme Court justice must recuse from “any proceeding in which his impartiality might reasonably be questioned.” The law also says a justice must recuse anytime he has “expressed an opinion concerning the merits of the particular case in controversy” while he “served in governmental employment.”

However, Mr. Tribe claims there is no reason to believe 28 USC 455 would require Kagan’s recusal from cases involving PPACA. Imagine that!

If you remember Rep. Bart Stupak of Michigan did not want to sign on to Obamacare because of abortion funding. The following is a note from Tribe to Kagan in the email exchange:

“So health care is basically done!” Tribe wrote to Kagan in this message. “Remarkable. And with the Stupak group accepting the magic of what amounts to a signing statement on steroids!”

The “Stupak group” is a reference to Stupak, who led a group of House Democrats who had indicated they would not vote for the Patient Protection and Affordable Care Act if it permitted federal funds to pay for abortions.  Stupak and his allies decided to vote for the bill, even though no additional language would be added to it prohibiting abortion funding, after Obama agreed to sign an executive order the administration said would prevent federal funding from going to abortions. Of course Obama never signed anything to prevent abortion funding, a liar always.

Kagan and Tribe went on to set up a dinner engagement to further discuss the matter and celebrate.

Carrie Severino at Judicial Crisis Network has written a 10-page memo entitled – “Elena Kagan: The Justice Who Knew Too Much” (Pdf.)

Ed Whelan at National Review Online sums up Ms. Severino’s memo neatly for a quicker read.

National Law Journal’s Tony Mauro writes, recusal from either looks a little less likely after Monday’s action:

Significantly, the Court’s orders on the health care cases contained no indication that any of the nine justices is recusing. . . The Court’s order to accept or deny review in a case is usually the first occasion for a justice to signal his or her recusal.

It should be noted there have been calls for Justice Clarence Thomas to recuse himself from the healthcare case because  his wife Virginia Thomas, who for a period operated the “Liberty Central” blog with ties to the Tea Party movement, had received donations from conservative businessman Harlan Crow, a longtime friend of the justice.

A leading expert on judicial ethics said neither Kagan nor Thomas is really required to recuse under the federal law governing judicial conflicts of interest.

Jeffrey Shaman of DePaul University College of Law said that in Kagan’s case, it is not uncommon for judges to begin their jobs with a history of some connection as legislators or member of the executive branch to issues that may come before them.

“Before they join the bench they make all kinds of comments about things, they work on legislation, make speeches and comments,” Shaman said, but that does not disqualify them from serving.

Both sides will keep pressuring to have Kagan an Thomas recuse themselves. I believe Kagan is certainly much closer to this debate than Justice Thomas.

Talk radio host Mark Levin writes that his Landmark Legal Foundation will be involved in the suit. He talks about the individual mandate; there is no Constitutional requirement to force a person into purchasing health care, and how the liberals have wanted to do this for years.

LLF has filed an amicus curiae (friend of the court) brief with the U.S. Supreme Court asking the Court to immediately take up several lawsuits in federal trial and appeals courts around the country challenging Obamacare and provide a final determination on the constitutionality of the law. A .pdf copy of the brief is available at: Landmark’s Amicus Brief on Obamacare

Keeping our “fingers and toes crossed” we pray the SCOTUS will find Obamacare  un-Constitutional. If not, we need to vote to have it repealed in the next election by throwing out more Liberals, especially Barack Obama.

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