Oh my: Documents reveal that Kagan may have helped craft legal defense of ObamaCare

posted at 9:17 pm on May 18, 2011 by Allahpundit

She won’t recuse herself, needless to say. Defending their signature domestic “achievement” when it’s under mortal threat from a constitutional challenge is much, much more important to the left than observing ethical rules. Which is why, of course, they’ve been hassling Clarence Thomas about a supposed conflict of interest in his own right vis-a-vis ObamaCare. They know Kagan is compromised, so they’re setting up a “tu quoque” rejoinder for when, not if, the GOP takes up this point in earnest.

I wonder if they know how compromised she is.

On March 21, 2010, Katyal urged Kagan to attend a health care litigation meeting that was evidently organized by the Obama White House: “This is the first I’ve heard of this. I think you should go, no? I will, regardless, but feel like this is litigation of singular importance.”

In another email exchange that took place on January 8, 2010, Katyal’s Department of Justice colleague Brian Hauck asked Katyal about putting together a group to discuss challenges to Obamacare. “Could you figure out the right person or people for that?” Hauck asked. “Absolutely right on. Let’s crush them,” Katyal responded. “I’ll speak with Elena and designate someone.”

However, following the May 10, 2010, announcement that President Obama would nominate Kagan to the U.S. Supreme Court, Katyal position changed significantly as he began to suggest that Kagan had been “walled off” from Obamacare discussions…

“Any reasonable person would read these documents and come to the same conclusion: Elena Kagan helped coordinate the Obama administration’s defense of Obamacare. And as long as the Justice Department continues to withhold key documents, the American people won’t know for sure whether her involvement would warrant her recusal from any Obamacare litigation that comes before the High Court,” said Judicial Watch President Tom Fitton.

March 21, 2010 was the day ObamaCare passed the House and, for all intents and purposes, became law. It’s hard to believe Kagan, as solicitor general, wouldn’t have showed up for a legal strategy session held that day, let alone at any point over the previous six months as the bill was working its way through Congress. But here’s the excuse they’re going to offer the public:

On May 17, 2010, for example, Tracy Schmaler, a Department of Justice spokesperson wrote to Katyal, “Has Elena been involved in any of that to the extent SG office was consulted … ?”

“No, she has never been involved in any of it. I’ve run it for the office, and have never discussed the issues with her one bit,” was Katyal’s response. He then forwarded the correspondence to Kagan, saying “This is what I told Tracy about Health Care.”

Kagan’s response: “This needs to be coordinated. Tracy you should not say anything about this before talking to me.”

Other email chains between Kagan, White House lawyers and Vice President Joe Biden’s then-Chief of Staff Ronald Klain show a coordinated effort on how to respond to questions about the health-care law that may have arisen in the confirmation hearings.

Just so we’re straight on the timeline here: On March 21, the day ObamaCare was passed, Katyal is inviting Kagan to strategy sessions about the new law. On April 9, John Paul Stevens resigns and speculation erupts about Kagan succeeding him. On May 17, Katyal is suddenly telling people that Kagan’s never been involved in anything — even though she is, in fact, the solicitor general of the United States and even though he explicitly invited her to a meeting about the law less than two months earlier — and Kagan is warning people via e-mail to make sure everyone has their story straight on what she knew by “coordinating.” Is that about right? I want to make sure we’re all square on this nonsense for when the mandate challenge finally reaches the Court and we’re told by her office that everything is magically copacetic.


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This is beyond disgusting. If she doesn’t recuse herself, she should be disbarred.

Lance Murdock on May 18, 2011 at 9:20 PM

Set the snooze-msm

artist on May 18, 2011 at 9:21 PM

Then it’s up to total repeal, nothing less.

Kini on May 18, 2011 at 9:21 PM

Count it!

-crr6

jawkneemusic on May 18, 2011 at 9:22 PM

Any chance she lied about any of this during her Senate ratification?

HondaV65 on May 18, 2011 at 9:22 PM

This is beyond disgusting. If she doesn’t recuse herself, she should be disbarred.

Lance Murdock on May 18, 2011 at 9:20 PM

I agree. But can it be done?

jawkneemusic on May 18, 2011 at 9:23 PM

Thank, GOP, for caving on all the judicial nominees. Barry Soetoro won so he “deserves” his choices, right?

SouthernGent on May 18, 2011 at 9:23 PM

Wow. This is more evidense than I was expecting.

But we are expecting that shame to work on the shameless.

petunia on May 18, 2011 at 9:24 PM

Let’s try to look at this like Liberals will..

How do you feel about the obvious conflict?

trubble on May 18, 2011 at 9:24 PM

Is there anyway to get this lying sack off SCOTUS? This all makes me sick

msmveritas on May 18, 2011 at 9:24 PM

And who exactly will lead the charge on Kagan’s recusal? Republicans? Please….

joejm65 on May 18, 2011 at 9:24 PM

Well, I am shocked. Shocked, I tells ya.

Vyce on May 18, 2011 at 9:25 PM

Can one impeach an Associate Justice of the SCOTUS?

JohnTant on May 18, 2011 at 9:26 PM

I agree. But can it be done?

jawkneemusic on May 18, 2011 at 9:23 PM

Theoretically she could be impeached. Not likely.

pedestrian on May 18, 2011 at 9:26 PM

Well she was going to vote in favor of ObamaCare anyways on the account that she is a liberal. Does this really change anything?

SoulGlo on May 18, 2011 at 9:27 PM

And she knew this going in. She and all liberals involved are vile, dishonest, evil beings.

capejasmine on May 18, 2011 at 9:27 PM

SCOTUS-Gate.

Thats a trademark. Mine. Want to use it? Bring money.

BobMbx on May 18, 2011 at 9:27 PM

Shocka! Zilch will come of this.

Philly on May 18, 2011 at 9:27 PM

Any chance she lied about any of this during her Senate ratification?

HondaV65 on May 18, 2011 at 9:22 PM

My question exactly. Is there a Senator who will check the record???

kringeesmom on May 18, 2011 at 9:28 PM

much, much more important to the left than observing ethical rules….

When has the left EVER observed ethical rules?
Too bad we don’t have a decent media to spread this wealth.

HornetSting on May 18, 2011 at 9:28 PM

Defending their signature domestic “achievement” when it’s under mortal threat from a constitutional challenge is much, much more important to the left than observing ethical rules.

Ethics? Ethics for the Left? It is to laugh!

That would like Moonshine and Guns agency walking guns into Mexico and then using that same traffic to justify destruction of the 2nd amendment….

Chip on May 18, 2011 at 9:28 PM

Can one impeach an Associate Justice of the SCOTUS?

JohnTant on May 18, 2011 at 9:26 PM

Yes

http://en.wikipedia.org/wiki/Samuel_Chase

pedestrian on May 18, 2011 at 9:29 PM

Is it bad that I didn’t even blink reading this.

For this administration – it’s business as ususal. Nothing shocks me anymore.

gophergirl on May 18, 2011 at 9:29 PM

Well she was going to vote in favor of ObamaCare anyways on the account that she is a liberal. Does this really change anything?

SoulGlo on May 18, 2011 at 9:27 PM

Yes, we now know we have a crooked judge on the bench.

tinkerthinker on May 18, 2011 at 9:30 PM

This means nothing because somebody else has been just as unethical.

-crr

CWforFreedom on May 18, 2011 at 9:31 PM

Yes, we now know we have a crooked judge on the bench.

tinkerthinker on May 18, 2011 at 9:30 PM

No way!

darwin-t on May 18, 2011 at 9:33 PM

This is fine. There is precedent. She was at Harvard. That is the best. Check her LSATs and, oh yes, Obama is awesome.
/crr6

ted c on May 18, 2011 at 9:33 PM

I’m stunned!
============

BINGO,remember November,and 2012 is on the horizon!

And dead on,Community Organizing Do-Gooder Bleed’n
Hearts are look’n for ways to control every aspect of
ones life!!

In two days,another Liberal Progressive,Elena Kagan will
be,if confirmed,in position,to carry on Obama’s agenda,
and is nothing more than a mirrored image of what Obama
stands for,and it will extend for decades to come!!!!

canopfor on June 26, 2010 at 6:42 PM

http://hotair.com/archives/2010/06/26/big-government-bad-journalism/

canopfor on May 18, 2011 at 9:33 PM

Any chance she lied about any of this during her Senate ratification?

HondaV65 on May 18, 2011 at 9:22 PM

The better question: Any chance she told the truth about anything during her Senate confirmation hearings.?

TXUS on May 18, 2011 at 9:34 PM

Is it possible she perjured herself during the confirmation hearing?

ninjapirate on May 18, 2011 at 9:35 PM

Government corruption at its most devious. How do these people sleep at night? Do they even have a conscience?

Self-absorbed narcissism at its best, for sure.

Lawrence on May 18, 2011 at 9:36 PM

Why did nobody GOP’s side bother to ask this question in the first place?

promachus on May 18, 2011 at 9:36 PM

Can one impeach an Associate Justice of the SCOTUS?

JohnTant on May 18, 2011 at 9:26 PM

Yes. Will they? Not while Leahy is in charge.

txmomof6 on May 18, 2011 at 9:37 PM

Has Sessions issued a press release?

txmomof6 on May 18, 2011 at 9:37 PM

jawkneemusic on May 18, 2011 at 9:23 PM

I don’t know, I just hope someone brings up charges if she doesn’t recuse herself.

Lance Murdock on May 18, 2011 at 9:37 PM

Why did nobody GOP’s side bother to ask this question in the first place?

promachus on May 18, 2011 at 9:36 PM

You must hate women.

darwin-t on May 18, 2011 at 9:38 PM

Yep, the liberals’ last line of defense is always “they all do it”.

That’s why they have prepared the battlefield with the nonsense about Justice Thomas’s wife.

slickwillie2001 on May 18, 2011 at 9:38 PM

Also, don’t forget the issue that Codevilla raised at Spectator. How she covered for one of her seniors when he was caught in a plagiarism scandal. I would request for what she wrote on his behalf as well.

promachus on May 18, 2011 at 9:38 PM

Heckuva a job Lyndsey!

The rank disregard thes people show for our constitution and laws is just sickening! I am sure there are better ways to put it but sickening for me covers it all.

bluemarlin on May 18, 2011 at 9:40 PM

I hate these people.

Emily M. on May 18, 2011 at 9:41 PM

“No, she has never been involved in any of it. I’ve run it for the office, and have never discussed the issues with her one bit,” was Katyal’s response. He then forwarded the correspondence to Kagan, saying “This is what I told Tracy about Health Care.”

Socialist totalitarians like.

/par

mankai on May 18, 2011 at 9:41 PM

Can one impeach an Associate Justice of the SCOTUS?

JohnTant on May 18, 2011 at 9:26 PM

Yes, and any other federal judge, for that matter, is subject to impeachment by the Congress for “High Crimes and Misdemeanors”, just like the President. Here, with Kagan, the more appropriate thing is for her to recuse herself from participating in a decision on this case – which, of course, will not happen – or for the attorneys challenging ObamaCare to file a motion to recuse her, which would be ruled on by the other eight members of the Court. These motions are almost always denied, however.

TXUS on May 18, 2011 at 9:42 PM

And the metrosexual RINOs in the Senate will do nothing.

Sporty1946 on May 18, 2011 at 9:43 PM

Next on the batters deck,from cmsinaz linky!
===========================================

Goodwin Liu teeters toward a loss
May 18 2011
Updated: 5/18/11 6:17 PM EDT
******************************

The Obama administration is teetering toward losing a fierce battle with Senate Republicans over the long-stalled appointment of Goodwin Liu to the Ninth Circuit Court of Appeals, a nominee conservatives fear would drag the liberal-leaning court further to the left.

Democrats need seven Republicans to join them in supporting Liu to overcome a filibuster, but several key Republicans said Wednesday they would not support the 39-year-old law professor from the University of California, Berkley. And if just one more Republican says no, Liu will fail to break the filibuster.

Read more: http://www.politico.com/news/stories/0511/55259.html#ixzz1Ml4S5700

canopfor on May 18, 2011 at 9:43 PM

Her girlfriend will be so pissed if they get dropped from the beltway cocktail party circuit because of this.

Alden Pyle on May 18, 2011 at 9:44 PM

This is beyond disgusting. If she doesn’t recuse herself, she should be disbarred.

Lance Murdock on May 18, 2011 at 9:20 PM

It’d be pointless outside of disgracing her (which she clearly doesn’t care about when it comes to saving left-wing agenda items). You don’t need a law degree to serve on the SCOTUS.

Can one impeach an Associate Justice of the SCOTUS?

JohnTant on May 18, 2011 at 9:26 PM

Yes. Will it happen? Not a shot in hell.

As I wrote earlier, Democrats care about one thing: Winning.

They’ll lie, cheat, steal, attack, physically beat, run around the Constitution, ignore the law…anything to win in the end.

Because the end goal leaves them in charge through censorship, oppression, and reliance upon them. A world in which they don’t need to worry about silly things like the Constitution or answering to the people.

The sooner we understand this the better.

amerpundit on May 18, 2011 at 9:48 PM

FDR stacked the Supreme Court to enable the New Deal…and even when parts of the New Deal were declared unconstitutional, we are still dealing with New Deal programs today…embodied in the nanny state.

Obama knew that Kagan was tainted…no question about that…and his appointment of her to the Supreme Court was nothing less than an end run around the Constitution to make sure ObamaCare became the supreme law of the land.

The average citizen either doesn’t know or doesn’t care about the Supreme Court and the power of the presidency through the Supreme Court.

So, what are informed citizens going to do about it?

Therein is the key question.

One or two more Obama appointments to the Supreme Court will seal the deal…and non of the socialist program of this Administration and the Left in general will be allowed to be challenged if Obama is able to exercise the most fundamental power of holding the White House…the ability to suborn the Judiciary.

So, what are we going to do about it?

coldwarrior on May 18, 2011 at 9:50 PM

Here, with Kagan, the more appropriate thing is for her to recuse herself from participating in a decision on this case…
TXUS on May 18, 2011 at 9:42 PM

Agreed with the caveat that she never perjured during her confirmation.

So, step one is clearly, check the transcripts.

LastRick on May 18, 2011 at 9:50 PM

15 federal judges, including 1 Supreme Court Justice have been impeached in our history. Of those 15, 3 including the Supreme Court Justice, Samuel Chase were acquitted. The others either were removed or resigned. The most recent was in 2010.

txmomof6 on May 18, 2011 at 9:51 PM

This is old news, isn’t it?

Maybe it’s just deja vu, but I thought I’d read those quotes from the emails before.

Purple Fury on May 18, 2011 at 9:52 PM

Impeach!

WisCon on May 18, 2011 at 9:52 PM

Defending their signature domestic “achievement” when it’s under mortal threat from a constitutional challenge is much, much more important to the left than observing ethical rules.

Rules? Rules are to keep the unwashed in line. The Enlightened don’t need no stinkin’ rules.

tgharris on May 18, 2011 at 9:53 PM

The House of Representatives has the sole power of bringing impeachment proceedings. If she is smart she will recuse herself and keep the damage under control.

txmomof6 on May 18, 2011 at 9:54 PM

Ask Alcee Hastings what happens when one is an impeached judge.

darwin-t on May 18, 2011 at 9:55 PM

So in sum, there’s absolutely zero evidence showing she crafted the legal defense, and zero hard evidence that she even so much as attended a meeting in connection with the litigation. And the only definitive statements are from Katyal, who said that Kagan was never involved. Got it.

Prediction: You guys will continue to use dishonest back-door tactics like this in an attempt to throw out the PPACA. You couldn’t defeat it democratically, so you opted for the courts. You can’t defeat it through the courts, either, so now you need to play cheap games like this to knock off judges you think won’t reach the “right” outcome.

Seriously, how do you sleep at night?

crr6 on May 18, 2011 at 9:56 PM

merely recsued!?

no.

impeached.

didn’t she perjure herself on this issue during her confrimation hearings?

yes:

Despite her prominent role in the Obama Administration as a legal advisor and Solicitor General, the attorney who argues for the administration at the Supreme Court, Kagan denied she played any role in fashioning the ObamaCare legislation or assisting Obama or his officials on it. Asked if she would recuse herself, Kagan told the Senate she would be “carefully considering any arguments made for recusal and consulting with my colleagues and, if appropriate, with experts on judicial ethics.”

FROM JEFF SESSIONS AT THE TIME:

Dear Solicitor General Kagan:

Thank you for the answers you provided in response to the written questions submitted following your confirmation hearing. Although your answers have been helpful, there are some responses that need clarification in order for the Committee to have the information it needs to thoroughly review your record. Notably, we are concerned about the standard you would use to decide whether to recuse yourself from litigation you participated in as Solicitor General. In particular, we are concerned about litigation that was clearly anticipated, but had not yet to reached the point where your approval was sought for filings or pleadings.

In response to Senator Sessions’ Question 1(b)(i), you stated: “I would recuse myself from any case in which I approved or denied a recommendation for action in the lower courts. This category would include cases in which I authorized an appeal, intervention, or the filing of an amicus brief. It would also include cases in which I denied leave to intervene or file an amicus brief.” You also stated: “I would also recuse myself from any cases in which I did not take such official action but participated in formulating the government’s litigating position or reviewed a draft pleading. In all other circumstances, I would consider recusal on a case-by-case basis.”

In response to a question from Senator Coburn at your hearing, you indicated that you had not been asked to express an opinion on the “merits” of the health care bill (Pub. L. No. 111-148) in your role as Solicitor General.

SHE LIED.

reliapundit on May 18, 2011 at 10:01 PM

Seriously, how do you sleep at night?

crr6 on May 18, 2011 at 9:56 PM

By knowing that we will never stoop so low as to be you.

tcn on May 18, 2011 at 10:01 PM

So, step one is clearly, check the transcripts.

LastRick on May 18, 2011 at 9:50 PM

I’m sure Sen. Sessions will. (no sarc). He probably remembers many of her phrases and comments.

INC on May 18, 2011 at 10:01 PM

crr6 on May 18, 2011 at 9:56 PM

“Any reasonable person would read these documents and come to the same conclusion: Elena Kagan helped coordinate the Obama administration’s defense of Obamacare. And as long as the Justice Department continues to withhold key documents, the American people won’t know for sure whether her involvement would warrant her recusal from any Obamacare litigation that comes before the High Court,” said Judicial Watch President Tom Fitton.

INC on May 18, 2011 at 10:02 PM

From the transcripts:

LEAHY: As solicitor general, did you have a role in the president’s domestic or foreign policy agenda?

KAGAN: The solicitor general does not typically take part in policy issues. [snip] the only policy issues I think that I might have taken part in [snip] are some national security issues.

LastRick on May 18, 2011 at 10:03 PM

I’m not tha concerned about her vote. I am concerned about her takng part in deliberations, circulating memos of law to other justces during the opinion writing process, etc. I don’t want her influencing any of the conservative brethern, and maybe changing a mind (coughKennedycough).

ex Dem from Miami on May 18, 2011 at 10:03 PM

I vote we call Kloppenburg in Wisconsin and ask her opinion on ethics in the law.
/

tcn on May 18, 2011 at 10:03 PM

You couldn’t defeat it democratically, so you opted for the courts.

crr6 on May 18, 2011 at 9:56 PM

LOL

Del Dolemonte on May 18, 2011 at 10:03 PM

“I was surprised by these documents considering her testimony,” Fitton told The Daily Caller. “And I suspect some senators on the Judiciary Committee ought to be surprised.”

“It certainly doesn’t look good,” he added. “The Obama administration appointed Kagan. It was well known this appointment was key in terms of providing a defense of the health-care law.”

INC on May 18, 2011 at 10:03 PM

LastRick on May 18, 2011 at 10:03 PM

Could you give date and page number? I started reading the links at WaPo.

Thanks.

INC on May 18, 2011 at 10:04 PM

INC on May 18, 2011 at 10:02 PM

Judicial Watch is an organization that describes itself as “a conservative, non-partisan American educational foundation that promotes transparency, accountability and integrity in government, politics and the law.”

crr6 on May 18, 2011 at 10:05 PM

I came over to see what our resident law and order babe had to say about this….I’m still laughing.

HornetSting on May 18, 2011 at 10:07 PM

You couldn’t defeat it democratically, so you opted for the courts.

crr6 on May 18, 2011 at 9:56 PM

Yawn. Old tactic for both sides. So the hell what?

Uncle Sams Nephew on May 18, 2011 at 10:08 PM

KAGAN: Right. I think that anything that I substantially participated in as a government official that’s coming before the court I should take very seriously, as you say, the appropriateness of recusal.

So there you go. All we have to do is what crr6 says: prove she took part. Her own words say she would recuse herself in that case. Unless she was lying then, under oath.

Wait a sec, but Kagan would probably play Clintonian semantics (she is a liberal after all) and say, “Define is substantial.” Damn, got us again.

LastRick on May 18, 2011 at 10:08 PM

I have to run, but I did find this. Not a transcript quote, just summary.

In her testimony, Kagan said she was never asked her opinion on the merits of the litigation.

She repeated that assertion in her response on Monday and expanded on it.

“I attended at least one meeting where the existence of the litigation was briefly mentioned, but none where any substantive discussion of the litigation occurred,” she said.

In a series of written questions sent last week, the Senate Republicans wanted to know whether she’d ever been asked for her opinion, ever offered her opinion, ever read or reviewed any filings in the case, ever approved any document, or ever offered her views about underlying legal or constitutional issues related to the health care legal challenge.

She answered all questions in the same way: “No.”

INC on May 18, 2011 at 10:09 PM

Judicial Watch is an organization that describes itself as “a conservative, non-partisan American educational foundation that promotes transparency, accountability and integrity in government, politics and the law.”

crr6 on May 18, 2011 at 10:05 PM

Ah, Grasshopper, but that same wiki link you cut and paste also says this about Judicial Watch.

Criticizing the George W. Bush administration for their guest worker program, obtaining evidence of a spike in illegal immigration denied by the administration.

Calling for Republican Tom DeLay to step down as House Majority Leader calling his actions on Medicare “inappropriate” and “unacceptable”

Filing a lawsuit against Vice President Dick Cheney and Halliburton for alleged fraudulent accounting practices.

Del Dolemonte on May 18, 2011 at 10:09 PM

INC on May 18, 2011 at 10:04 PM

Found a better link here where they combined all of the WaPo transcripts.

LastRick on May 18, 2011 at 10:10 PM

Seriously, how do you sleep at night?

crr6 on May 18, 2011 at 9:56 PM

Knowing that you are wrong on most every post, gives us a good nights sleep.
And knowing in the morning that you are getting one of your bosses coffee and answering his phone…
But to get to your other point, since Obama is not releasing the information he has been requested to release regarding her participation, people have to start with what evidence is provided…and that evidence points to complicity.
When the “most transparent administration evah” finally gets around to being co-operative, than you can talk the big talk, until then—-shhhhhhhh!

right2bright on May 18, 2011 at 10:10 PM

I see Captain Confirmation Bias, the resident lawyer wannabe, chimed in to try and excuse or at least dismiss this development. This effort is yet one more reason why I think the whole law student thing is a carefully crafted fiction.

JohnTant on May 18, 2011 at 10:10 PM

We are officially in Hugo Chavez territory. Just like the Venezuelan Constitutional the U.S. Constitution is now strictly ornamental.

DeathB4Tyranny on May 18, 2011 at 10:11 PM

From the Judicial Watch link above :

According to a January 8, 2010, email from Neal Katyal, former Deputy Solicitor General (and current Acting Solicitor General) to Brian Hauck, Senior Counsel to Associate Attorney General Thomas Perrelli, Kagan was involved in the strategy to defend Obamacare from the very beginning:

Subject: Re: Health Care Defense:

Brian, Elena would definitely like OSG [Office of Solicitor General] to be involved in this set of issues…we will bring in Elena as needed. [The “set of issues” refers to another email calling for assembling a group to figure out “how to defend against the…health care proposals that are pending.”]

INC on May 18, 2011 at 10:11 PM

Lance Murdock on May 18, 2011 at 9:20 PM

Agree!

cmsinaz on May 18, 2011 at 10:11 PM

LastRick on May 18, 2011 at 10:10 PM

Thanks.

INC on May 18, 2011 at 10:11 PM

You couldn’t defeat it democratically,
crr6 on May 18, 2011 at 9:56 PM

LOL
As if the way this farce was passed was democratic. Ha. Here is a hint: when the majority of voters oppose something, and their Representatives pass it anyway, democratic is the last adjective I would use. But that’s just me.

txmomof6 on May 18, 2011 at 10:12 PM

I knew,knew,knew that Mr. Hankie/crr6 would pop up with her normal illogical responses.
I wonder if she can contort her kitty in the same manner as she does her mind. If she wasn’t so irritating she might be a fun date—–for ernesto.

arnold ziffel on May 18, 2011 at 10:14 PM

You can tell this post has Crr crapping her diaper.

CWforFreedom on May 18, 2011 at 10:14 PM

Wait a sec, but Kagan would probably play Clintonian semantics (she is a liberal after all) and say, “Define is substantial.” Damn, got us again.

LastRick on May 18, 2011 at 10:08 PM

She definitely answered NO to the written questions–see my link at 10:09.

INC on May 18, 2011 at 10:14 PM

here’s the excuse they’re going to offer the public:…..

and the lsm and the kool-aid folk will preach it as gospel…

cmsinaz on May 18, 2011 at 10:15 PM

INC, I keep coming back to the same piece you are:

KAGAN: Senator Leahy, I think certainly, as I said in that questionnaire answer, that I would recuse myself from any case in which I’ve been counsel of record at any stage of the proceedings, in which I’ve signed any kind of — of brief.

So, was she ever counsel of record?

Subject: Re: Health Care Defense:

Brian, Elena would definitely like OSG [Office of Solicitor General] to be involved in this set of issues

LastRick on May 18, 2011 at 10:16 PM

crr6 on May 18, 2011 at 9:56 PM

Joseph Stalin: You can’t make an omelette without breaking a few eggs.

Whatever it takes to implement your National Progressive agenda eh, crr6?

Forget ethics, forget representative democracy, forget the truth, forget the Constitution, right?

Chip on May 18, 2011 at 10:17 PM

She definitely answered NO to the written questions–see my link at 10:09.

INC on May 18, 2011 at 10:14 PM

Wow, better catch than I. Why worry about “counsel of record” when it’s even more obvious now that she lied on the questionnaire. She can’t say “I was not approached for my opinion” if 1) she was and 2) it looks like she solicited the contact (“Elena would definitely like…”) .

LastRick on May 18, 2011 at 10:19 PM

LastRick on May 18, 2011 at 10:16 PM

That certainly caught my eye.

And the part AP mentioned about “coordination”:

Shmaler to Katyal, Subject HCR [Health Care Reform] litigation: “Has Elena been involved in any of that to the extent SG ]Solicitor General’s] office was consulted?…

Katyal to Schmaler: “No she has never been involved in any of it. I’ve run it for the office, and have never discussed the issues with her one bit.”

Katyal (forwarded to Kagan): “This is what I told Tracy about Health Care.”

Kagan to Schmaler: “This needs to be coordinated. Tracy you should not say anything about this before talking to me.

INC on May 18, 2011 at 10:20 PM

Agreed with the caveat that she never perjured during her confirmation.

LastRick on May 18, 2011 at 9:50 PM

If she had answered a question, or stated, that she had “nothing to do with formulating a defense to the health care bill, as enacted”, or something to that effect, Congressional perjury might have been committed and, thus, a High Crime and Misdemeanor potentially.

Problem is, there will be no effort on the part of the Democrat-controlled Senate to even ask for an investigation of same, much less to convict on a House impeachment resolution.

Such a statement by her, if made, would lend considerable weight to a Motion to Recuse. But her answer/statement would have to be very clear for the other Justices to even take the motion up.

TXUS on May 18, 2011 at 10:20 PM

LastRick,

I look forward to what Sen. Sessions will do.

INC on May 18, 2011 at 10:21 PM

Crr is a authoritarian statist that is clear.
I don’t know how she sleeps at night. Seriously scary.

CWforFreedom on May 18, 2011 at 10:21 PM

You couldn’t defeat it democratically, so you opted for the courts. You can’t defeat it through the courts, either, so now you need to play cheap games like this to knock off judges you think won’t reach the “right” outcome.

Seriously, how do you sleep at night?

crr6 on May 18, 2011 at 9:56 PM

Kinda like Prop 8?

SuperCool on May 18, 2011 at 10:22 PM

Such a statement by her, if made, would lend considerable weight to a Motion to Recuse. But her answer/statement would have to be very clear for the other Justices to even take the motion up.

TXUS on May 18, 2011 at 10:20 PM

See this link:

In a series of written questions sent last week, the Senate Republicans wanted to know whether she’d ever been asked for her opinion, ever offered her opinion, ever read or reviewed any filings in the case, ever approved any document, or ever offered her views about underlying legal or constitutional issues related to the health care legal challenge.

She answered all questions in the same way: “No.”

The column doesn’t summarize the questions, but I think Jeff Sessions is smart enough to have helped formulate a tight box.

INC on May 18, 2011 at 10:24 PM

cheap games

like this to knock off judges you think won’t reach the “right” outcome.

Seriously, how do you sleep at night?

crr6 on May 18, 2011 at 9:56 PM

If it turns out to be true as laid out by AP I would not call that CHEAP.

CWforFreedom on May 18, 2011 at 10:24 PM

You couldn’t defeat it democratically,
crr6 on May 18, 2011 at 9:56 PM

LOL
As if the way this farce was passed was democratic. Ha. Here is a hint: when the majority of voters oppose something, and their Representatives pass it anyway, democratic is the last adjective I would use. But that’s just me.

txmomof6 on May 18, 2011 at 10:12 PM

Curious she would use that word – if that was the case Why did they have to Rahm it down our throats as they did?

Chip on May 18, 2011 at 10:24 PM

What the people like crr6 and the scorched earthers on the left fail to understand is that a critical pillar of our system of justice is the belief by the citizenry that justice is impartial. That is why even the appearance of impropriety is corrosive. Especially in this day and age of distrust in government. Look how tormented the left has been over their belief that Gore v. Bush was politically motivated. Recusal is an option for the good of the judiciary and our system of government, in addition to the good of the parties involved.

txmomof6 on May 18, 2011 at 10:24 PM

You couldn’t defeat it democratically, so you opted for the courts.

crr6 on May 18, 2011 at 9:56 PM

You prefer a 2-branch government?

Ronnie on May 18, 2011 at 10:26 PM

Looks like I picked the wrong week to drop out of Law School…

/

Seven Percent Solution on May 18, 2011 at 10:31 PM

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