85 Call for Kagan Recusal on Obamacare

Bob Beauprez
Posted: Nov 19, 2011 12:01 AM

The call for Congress to hold hearings on the need for Justice Elena Kagan to recuse herself from the ObamaCare case now on the docket of the Supreme Court has exploded.  The number of organizations signing on to a letter to House Judiciary Chairman Lamar Smith has more than tripled in just 48 hours since our original blog post calling for her to stand aside.  Following is a link to the final draft of the letter signed by the leaders of 85 citizens organizations and related other articles and documents.

Leader's Letter to House Judiciary Chairman Lamar Smith

Judicial Action Group's Press Release

Judicial Crisis Network brief: Elena Kagan, The Justice Who Knew Too Much

Judicial Watch November 10, 2011 background article

Leaders of two dozen citizen organizations are urging the House Judiciary Committee to hold hearings on the need for Elena Kagan to recuse herself from the ObamaCare case now scheduled to be heard by the Supreme Court.  In a letter to Judiciary Chairman  Lamar Smith (full text here), and copied to House Republican Leadership, the group concludes that "a reasonable person would certainly have sufficient basis to question the impartiality of Justice Kagan if she were permitted to prepare the defense of a case as an advocate and then switch roles and judge the defense of the same case as a justice." (Emphasis included)

The effort is spearheaded by Phillip Jauregui, President of Judicial Action Group, a Washington based organization dedicated to "judicial renewal" by returning "the judiciary to its proper role of deciding cases and not legislating from the bench."  

The letter from the distinguished group of leaders outlines five essential grievances and questions that they feel should be explored regarding the need for Kagan to recuse herself from the ObamaCare case, as follows:

  1. During her Supreme Court Confirmation hearing, Kagan admitted she was present for "at least one" meeting in which the PPACA (ObamaCare) litigation was discussed.
  2. Solicitor General Kagan made the unusual, but not unprecedented, decision for The Solicitor General’s office to coordinate with the Department of Justice (“DOJ”) while preparing the earliest defenses of PPACA rather than following standard practice of waiting until the act reached the appellate courts.
  3. Kagan personally appointed the over-sight of the PPACA defense to her top deputy – a political appointee – who zealously stated his desire to “crush” those challenging the constitutionality of PPACA.
  4. Kagan both received and responded to emails about the PPACA litigation.
  5. The Department of Justice now refuses to produce in whole in response to the aforementioned FOIA requests, claiming that such documents are “privileged” under an exemption traditionally reserved for those participating in their role as attorneys in a case.

The final grievance above is in reference to the DOJ's continued refusal to provide documents as originally requested by Chairman Smith last July such that the Judiciary Committee might "properly understand any involvement by Justice Kagan in matters relating to health care legislation or litigation while she was Solicitor General."  More than just a stiff-arm refusal, the DOJ called the Judiciary Committee's reasonable request "unseemly." 

Elena Kagan's fingerprints and DNA are all over the White House's efforts to muscle through passage of ObamaCare and anticipate the legal defense of the legislation.  The Leader's Group raises the obvious question of how can the same person be both advocate and impartial jurist on the same issue.  Imagine for a moment if the shoe was on the other foot – if we were talking about a conservative judge and a conservative issue?  Say Henry Hyde, the great pro-life champion and author of the Hyde Amendment, was a member of the SCOTUS and a pro-life question was before the Court?  The liberal media and the left would be incensed, animated, and outraged at even a slight consideration that Hyde might not recuse himself.  Yet, all we hear about the obvious need for Kagan to recuse herself from the ObamaCare case is silence, and charges that to even raise the question is "unseemly."