49 House members demand probe of Kagan involvement in ObamaCare

posted at 11:35 am on July 1, 2011 by Ed Morrissey

Did Elena Kagan mislead the Senate Judiciary Committee during her confirmation hearing when answering questions about her level of involvement in ObamaCare?  Forty-nine House members have signed a letter to the House Judiciary Committee demanding an investigation of that question, as new documents suggest that the now-Supreme Court Justice helped the Obama administration craft legal defenses for the law.  The signatories argue that this should require Kagan to recuse herself from considering the appeals that will likely arrive at the Supreme Court from three different appellate circuits:

Forty-nine members of the U.S. House of Representatives are calling for the House Judiciary Committee to investigate Supreme Court Justice Elena Kagan’s involvement in Obamacare while she was serving as solicitor general in the Obama administration.

The lawmakers also say that they believe the evidence so far made public already shows that Kagan must recuse herself from court cases involving the health care bill signed into law by President Barack Obama while she was serving as Obama’s solicitor general. …

“Contradictory to her 2010 confirmation testimony before the Senate Judiciary Committee, recently released Department of Justice documents indicate that Justice Kagan actively participated with her Obama administration colleagues in formulating a defense of PPACA,” wrote the 49 congressmen.

“Regrettably the Justice Department has been uncooperative to date with repeated FOIA requests that seek the full body of relevant emails from the Office of the Solicitor General that would reveal the scope of Kagan’s involvement in PPACA defense activities,” the congressmen said.

During the period of time when Congress sharply debated ObamaCare, Kagan’s input could certainly have seemed critical.  As Solicitor General, Kagan would have had to defend the law before the Supreme Court on behalf of the administration.  Crafting the bill to withstand that kind of scrutiny and to mold the bill into a more-defensible form would have fallen within the purview of the Solicitor General, although it certainly wouldn’t have required it.

Did Kagan participate in crafting a defense of the PPACA, as it is officially known?  In her sworn testimony before the Senate, Kagan denied being asked for any opinion on the merits of the bill, a question she was directly asked by Tom Coburn on the third day of her hearing:

COBURN: Thank you. And my — I have two final questions. One, was there at any time — and I’m not asking what you expressed or anything else — was there at any time you were asked in your present position to express an opinion on the merits of the health care bill?

KAGAN: There was not.

That may still be true.  However, it’s clear that Kagan was interested enough in the defense of the bill to encourage her top deputy at the time, Neal Katyal, to participate in crafting a defense.  E-mails from previous FOIA requests show that Kagan told Katyal “You should do it” when he was approached by Brian Hauck on behalf of Thomas Perrelli, the Associate Attorney General.  Katyal then copied Kagan on the work he was doing to build the defense of ObamaCare.  Katyal then asked Kagan for permission to attend a litigation preparation meeting as Congress passed ObamaCare, to which Kagan asked for Katyal’s phone number to discuss.

However, on May 15, 2010, there is an interesting exchange between Katyal, Kagan, and Tracy Schmaler in the DoJ’s Office of Public Affairs — basically a PR flack.  Schmaler asks Katyal if Kagan had ever been involved in PPACA consultations, to which Katyal says no, and then copies Kagan on the reply.  Kagan then tells Schmaler directly not to say anything about that question without directly coordinating with her (Kagan).

That denial is rather interesting, because on March 22nd — a day after Katyal asked Kagan’s permission to join the defense — Kagan e-mailed her deputy Solicitor General, Edwin Kneedler, to ask a question specifically about what seems to be a personnel assignment directly related to the ObamaCare legislation.  In June, another series of e-mails from deputy SG Malcolm Stewart copied Kagan on strategy to keep a specific health care issue related to “reverse payments” (the Preserve Access to Affordable Generics Act) out of the PPACA debate.

It doesn’t appear that Kagan was as hermetically sealed from the ObamaCare defense as she previously indicated.  The letter wants to press Kagan to recuse herself, based on federal law:

“As you know,” the wrote, “Section 455 of Title 28 of the United States Code establishes unambiguous conditions in which federal judges must recuse themselves from proceedings in which their impartiality might reasonably be questioned,” the lawmakers wrote. “According to the law, a justice should recuse themselves in cases ‘where he has served in governmental employment and in such capacity served as counsel, adviser or material witness concerning the proceedings or expressed an opinion concerning the merits of the particular case in controversy.’

“Even from the limited number of DOJ emails released to date through a Freedom of Information Act lawsuit, it is evident that Justice Kagan was involved in PPACA defense activities to a degree that warrants her disqualifications from related proceedings as specified by Section 455,” the lawmakers said.

This is what those attacking Clarence Thomas for his wife’s political activities have been trying to keep quiet through a campaign of distraction.  A House hearing will likely bring a lot more attention to Kagan’s connection to the PPACA defense effort in the White House and possibly could open up a can of worms if further evidence that she did gave more explicit assistance to the effort.  Nothing in the e-mails that the Obama administration has yet released show her answer to Coburn to be false, but there are a number of e-mails that the White House has refused to release from the FOIA request.  If there is something more significant, it might move from a recusal demand to a probe of Kagan’s conduct in her Senate hearing, which won’t help the Obama administration with the rest of its nominees requiring confirmation in the Senate.

Breaking on Hot Air

Blowback

Note from Hot Air management: This section is for comments from Hot Air's community of registered readers. Please don't assume that Hot Air management agrees with or otherwise endorses any particular comment just because we let it stand. A reminder: Anyone who fails to comply with our terms of use may lose their posting privilege.

Trackbacks/Pings

Trackback URL

Comments

Ya know, I really don’t want to hear this. The Senate GOP should’ve filibustered her, but nooooooooooooooooooooooo.

SouthernGent on July 1, 2011 at 11:37 AM

Ok, so what is the enforcement mechanism?

Kagan will *not* recuse herself no matter what, though clearly she is obligated to – but there is, to borrow a phrase, to real “legal controlling authority”.

18-1 on July 1, 2011 at 11:39 AM

Ya know, I really don’t want to hear this. The Senate GOP should’ve filibustered her, but nooooooooooooooooooooooo.

SouthernGent on July 1, 2011 at 11:37 AM

That wouldn’t be comity. –The RNC

18-1 on July 1, 2011 at 11:39 AM

Yeah, the horse is out of the barn and now they want to shut the door? I get that if they can get her to recuse herself, it would be a win. But unless she can be removed, she will be legislating from the bench for 30 years.

csdeven on July 1, 2011 at 11:39 AM

As the pope reminded us -call black, black, white , white, and evil, evil!

She didn’t mislead -She lied!

What is so hard about telling the truth these days.There isn’t a politician that can’t lie with ease but, danged if the can bring themsleves to calling these leftists folks what they transparently are-Liars!

Don L on July 1, 2011 at 11:40 AM

Did Elena Kagan mislead lie to the Senate Judiciary Committee during her confirmation hearing when answering questions about her level of involvement in ObamaCare?

steebo77 on July 1, 2011 at 11:41 AM

Ya know, I really don’t want to hear this. The Senate GOP should’ve filibustered her, but nooooooooooooooooooooooo.

SouthernGent on July 1, 2011 at 11:37 AM

But we’ll all vote them in again, won’t we?

Don L on July 1, 2011 at 11:41 AM

The Republicans are going to need a bigger set of balls than Kagan has if they’re going force her to recuse herself. Call me cynical, but this is more and more looking like she’s there for exactly this appeal.

MJZZZ on July 1, 2011 at 11:42 AM

what happens if a supreme recuses? do 8 hear the argument? or does someone have to sit-out to make 7?

Kaptain Amerika on July 1, 2011 at 11:42 AM

“Regrettably the Justice Department has been uncooperative to date with repeated FOIA requests…” Imagine that. Sounds as if she was involved up to her eyeballs.

Kissmygrits on July 1, 2011 at 11:43 AM

I hate this word but only Impeachment can force her to not hear the case.

But the investigation needs to proceed.

barnone on July 1, 2011 at 11:44 AM

What if Kagan recuses herself and the appellate courts split on the constitutionality of ObamaCare and the Supreme Court hands down a 4-4 decision?

That would be one hell of a legal mess.

NotCoach on July 1, 2011 at 11:44 AM

Yeah, this is all getting swept under the rug. This is a Big Political Matter, and Kagan’s recusal is not permitted.

By the way, thanks for voting for her, Grahamnesty!

KingGold on July 1, 2011 at 11:45 AM

What hosres*it. The Senate was fully aware of the actual, potential and future conflicts and they still went for her hook, line and sinker.

Mr. Grump on July 1, 2011 at 11:46 AM

I’d like to see the timeline of events. It seems to me that at some point Kagan had to have received word from on high that she was being considered -or was the frontrunner for a SCOTUS nomination.

Either her appointment as Solicitor General was purely preparatory for the SCOTUS job and she was under instruction (or the good sense) not to actually do anything during that time, or she did her job as prescribed. If she did her job, then surely she was involved in the crafting of the defense of PPACA; if she just took a taxpayer salary to sit around and wait for her nomination to SCOTUS, then maybe she’s clean.

I can’t envision another scenario.

BKeyser on July 1, 2011 at 11:50 AM

what happens if a supreme recuses? do 8 hear the argument? or does someone have to sit-out to make 7?

Kaptain Amerika on July 1, 2011 at 11:42 AM

They go with the remaining eight.

BuckeyeSam on July 1, 2011 at 11:50 AM

COBURN: Thank you. And my — I have two final questions. One, was there at any time — and I’m not asking what you expressed or anything else — was there at any time you were asked in your present position to express an opinion on the merits of the health care bill?
KAGAN: There was not.

How is that “misleading”? It is a lie.

Color me stupid, but I thought there were consequences to lying under oath.

MississippiMom on July 1, 2011 at 11:51 AM

The fools on Fox just gave the Power Thug ideas on how to raise the debt ceiling on his own, bypassing congress.

Schadenfreude on July 1, 2011 at 11:53 AM

If she did mislead during the confirmation hearings, shouldn’t she be impeached?

ProfessorMiao on July 1, 2011 at 11:54 AM

She was both unqualified and unfit for the appointment. She is a cheesy academic hack liberal, not a judge.

Those who voted to confirm her should be primaried and replaced, as they obviously do not take their jobs seriously.

Jaibones on July 1, 2011 at 11:58 AM

Internalize this – it has dire consequences on you and your progeny.

Schadenfreude on July 1, 2011 at 11:58 AM

“No laws were broken!”
/crr6

Khun Joe on July 1, 2011 at 12:00 PM

If this indeed true on kagan and she was under oath at the time she may have lied, now what can be done about it? Can a SC judge get the boot? You can’t file charges against her can you? holder would have to deal with it and he sure the heck will do zero! kagan fits right in with everyone around bho, all liars and sleazy!
L

letget on July 1, 2011 at 12:00 PM

Regrettably the Justice Department has been uncooperative to date with repeated FOIA requests…

… the White House has refused to release from the FOIA request.

Seems like there’s a lot of this going on. Weird, huh?

John Deaux on July 1, 2011 at 12:00 PM

Wasn’t her testimony under oath? If there is clear-cut evidence she lied, isn’t that perjury? If a judge perjures themselves, doesn’t that strip them of the law license, as well as other penalties?

Rebar on July 1, 2011 at 12:00 PM

It’s not “mislead”, and it’s not “lie”, it’s perjury, and it’s against the law.

slickwillie2001 on July 1, 2011 at 12:01 PM

Of all the non-answer/evasions during that farce of a confimation hearing, one of the very few times she answered a question was with a lie?

Does that mean she’ll have to recuse herself on cases involving perjury, too?

DrAllecon on July 1, 2011 at 12:01 PM

GOP Senators who voted to confirm Kagan:

Tom Coburn (Okla.) – increasingly douchy
Judd Gregg (N.H.) – gone
Orrin Hatch (Utah) – soon to be gone
Jon Kyl (Ariz.) – soon to be gone
Richard Lugar (Ind.) – soon to be gone
and the Nitwit Sisters:
Olympia Snowe (Maine)
Susan Collins (Maine) – you can primary these two liberal idiots, but then you end up with Democrats in those seats.

Jaibones on July 1, 2011 at 12:03 PM

Ya know, I really don’t want to hear this. The Senate GOP should’ve filibustered her, but nooooooooooooooooooooooo.

SouthernGent on July 1, 2011 at 11:37 AM

On the other hand, she is unaccomplished herself, and likely will have little effect on the other judges. We could have done a whole lot worse with little Bammie. A scholarly and personally charismatic judge like Roberts but on the left would be our nightmare.

slickwillie2001 on July 1, 2011 at 12:03 PM

Did Elena Kagan mislead the Senate Judiciary Committee during her confirmation hearing when answering questions about her level of involvement in ObamaCare?

Is the Pope Catholic?

jdkchem on July 1, 2011 at 12:06 PM

Panties on fire.

petefrt on July 1, 2011 at 12:06 PM

Did Elena Kagan mislead the Senate Judiciary Committee during her confirmation hearing when answering questions about her level of involvement in ObamaCare?

Rhetorical question?

BobMbx on July 1, 2011 at 12:07 PM

Kagan will have to decide what is more important to her: her judicial legacy or her participation in this seminal case. If she doesn’t recuse herself (even if she was NOT involved in the decision) there will always be an asterisk next to her name and her future decisions as the judge who did not appear to be impartial when it mattered.

txmomof6 on July 1, 2011 at 12:07 PM

Did Kagan mislead? Does a fish swim in water? Is Barry a two-faced liar?

GarandFan on July 1, 2011 at 12:10 PM

If there is something more significant, it might move from a recusal demand to a probe of Kagan’s conduct in her Senate hearing, which won’t help the Obama administration with the rest of its nominees requiring confirmation in the Senate.

Confirmation hearings are under oath. I see a perjury charge in Kagans’ future.

We truly do live in joyous times.

BobMbx on July 1, 2011 at 12:12 PM

On the other hand, she is unaccomplished herself, and likely will have little effect on the other judges. We could have done a whole lot worse with little Bammie. A scholarly and personally charismatic judge like Roberts but on the left would be our nightmare.

slickwillie2001 on July 1, 2011 at 12:03 PM

Judicial expertise is irrelevant. All that matters is how they vote. Ask yourself this: Is there any chance that Scalia would be affected in any way by an arguement made Darth Vader-Ginsburg?

BobMbx on July 1, 2011 at 12:15 PM

Color me stupid, but I thought there were consequences to lying under oath.

MississippiMom on July 1, 2011 at 11:51 AM

Only if there’s an (R) after your name.

cthulhu on July 1, 2011 at 12:16 PM

Judicial expertise is irrelevant. All that matters is how they vote. Ask yourself this: Is there any chance that Scalia would be affected in any way by an arguement made Darth Vader-Ginsburg?

BobMbx on July 1, 2011 at 12:15 PM

Ruth Buzzi? Not a chance, I think she sleeps through most hearings anyway. Court watchers do suggest that someone like Kennedy who is often on the fence is open to being swayed by fellow judges.

slickwillie2001 on July 1, 2011 at 12:21 PM

The sad part about this, is this is nothing that anyone with any shred of common sense didnt know or wasnt aware of prior to her confirmation. Now suddenly there are questions? This is what we get when we have a bunch of appeasers and spineless hacks in the senate.

Koa on July 1, 2011 at 12:23 PM

She won’t recuse herself guaranteed, and the lsm won’t
focus on this issue

I blame the gop for approving this chick

cmsinaz on July 1, 2011 at 12:38 PM

Can A SC judge be impeached? Or removed for lying under oath

cmsinaz on July 1, 2011 at 12:42 PM

Both Sotomayer and kegan had dirty backgrounds. Republicans want to act like they get along and really should have shot both down. This does need a lot of publicity. I knew when she was nominated I thought she had a hand in crafting Obamascare bill. But people look the other way.

seven on July 1, 2011 at 12:53 PM

Parasites…

Chip on July 1, 2011 at 1:00 PM

Typical….

SPGuy on July 1, 2011 at 1:08 PM

If, if she is impeached, does Zero replace her with Hillary or another Alinskite? Me thinks the impeachment should hold off until next year or better in 2013. Let’s just hope SCOTUS won’t hear the cases until Summer of 2013.

AH_C on July 1, 2011 at 1:08 PM

elections have consequences and when idiots like McShame are put forth as deserving candidates this is what happens….

NO MORE RINOS AND NO MORE “IT WAS HIS TURN”

SDarchitect on July 1, 2011 at 1:08 PM

Good lord, how awesome would it be if Kagan ended up having to recuse herself on this, while Weiner not only failed to get Thomas to recuse himself, but essentially got himself kicked out of Congress?

holygoat on July 1, 2011 at 1:09 PM

On behalf of Hoosier Conservatives, I would like to personally thank DICK Lugar for reaching across the aisle and voting to confirm yet another Socialist liberal judge. Thanks for representing our YOUR interests. Enjoy all the cocktail parties with the Democrats you pompous ass.

search4truth on July 1, 2011 at 1:13 PM

Can A SC judge be impeached? Or removed for lying under oath

cmsinaz on July 1, 2011 at 12:42 PM

The mechanism to do so is in place but has never been used successfully on a SC justice.

The threat of doing so has gotten at least one real sh!tbird of a justice, Abe Fortas, to resign, but that was a special case.

teke184 on July 1, 2011 at 1:14 PM

elections have consequences and when idiots like McShame are put forth as deserving candidates this is what happens….

NO MORE RINOS AND NO MORE “IT WAS HIS TURN”

SDarchitect on July 1, 2011 at 1:08 PM

I pray that we have learned our lesson on this.

Chip on July 1, 2011 at 1:15 PM

If, if she is impeached, does Zero replace her with Hillary or another Alinskite?

If she’s impeached, the Senate will filibuster any nominee until after the 2012 election IMHO since she and, by extension, Obama pulled a fast one on the current Senate.

It ain’t gonna happen before 2013, though, because there’s no way a Dem-majority Senate will remove her. It could actually happen in a Republican-majority Senate come 2013, though.

teke184 on July 1, 2011 at 1:16 PM

teke184 on July 1, 2011 at 1:14 PM

thanks teke…maybe this is right time to put it into gear

cmsinaz on July 1, 2011 at 1:17 PM

For those asking what happens in a SCOTUS split decision – in that situation, the appellate ruling stands.

So, it’s VERY important that the 11th circuit upholds judge Vinson’s ruling.

If judge Vinson’s ruling is knocked down, we still need Kennedys vote, even if Kagen recuses herself. If the 11 circuit upholds Vinson’s ruling, we don’t need Kennedys vote, a 4-4 tie will suffice – ergo the left MUST get Thomas to recuse himself.

Whether or not Kagan will recuse herself is dependent upon the 11th circuits ruling. If they knock it down, then Kagan will recuse herself, if they uphold it, then Kagan will not recuse herself.

Mashman on July 1, 2011 at 1:21 PM

It ain’t gonna happen before 2013, though, because there’s no way a Dem-majority Senate will remove her. It could actually happen in a (conservative)Republican-majority Senate come 2013, though.

teke184 on July 1, 2011 at 1:16 PM

Never count on ruling-class Republicans to do anything that might take actual testicles or show respect to the Constitution.

SKYFOX on July 1, 2011 at 1:24 PM

MLK cries in his grave.

Schadenfreude on July 1, 2011 at 1:29 PM

Yikes! You mean to say that Dick nominated a liar to the nation’s highest court? This impugns the integrity of softball players across the land.

Mason on July 1, 2011 at 1:34 PM

Disbarment would be fun for us and embarrassing for the democratics, but it wouldn’t really matter. Supreme Court judges don’t have to be members, in fact don’t even have to be lawyers.

slickwillie2001 on July 1, 2011 at 1:36 PM

Lying under oath is something anyone tied to the Clintons is good at.

Felony perjury is their specialty.

Unfortunately, Bill Clinton proved perjury is not a crime to Democrats.

scotash on July 1, 2011 at 2:20 PM

This liar repeatedly committed perjury during her confirmation hearings, and did everything in her power to disguise her political agenda when when wasn’t.

This sad process is the legacy of the vile assault on Judge Bork by Teddy Kennedy and the Democrats. Bork had the courage to tell the truth, and he was slandered and smeared for it. Now judicial nominees routinely conceal their judicial philosophy and speak in platitudes in self-defense. But Kagan and Sotomayor went much further than refusing to answer frankfly. They lied about their past actions and beliefs and misrepresented themselves.

Unless the problem is resolved, Senate confirmation hearings of judges will continue to be the sad dog-and-pony show they have become.

In the meantime, Kagan and Sotomayor must be held to account for their lies whenever the opportunity arises.

novaculus on July 1, 2011 at 2:29 PM

For the record, supreme court justices can be impeached, and perjury is certainly grounds.

Vashta.Nerada on July 1, 2011 at 2:59 PM

At the time of Kagan’s confirmation hearings, every single Republican knew that she was somehow involved in the crafting of Obamacare… yet they let her pass easily through the process.

She is a leftist partisan. She is NOT a constitutionalist.

Now you have a liberal “wise latina” an openly liberal hack on the Supreme Court, neither of which are the most trustworthy, and both are competing for the title for “the least qualified Supreme Court justice”.

Obama has done far more damage than most people realize… and the Republicans did nothing… not even hinting to filibuster a la Ted Kennedy.

Danny on July 1, 2011 at 3:05 PM

Ok and so what ? What are they going to do if she did lie? Are they going to impeach her? Demand that she resign?

ColdWarrior57 on July 1, 2011 at 3:11 PM

For the record, supreme court justices can be impeached, and perjury is certainly grounds.

Vashta.Nerada on July 1, 2011 at 2:59 PM

Has it ever happened?

Samuel Chase – acquitted
William O. Douglas – two attempts to initiate proceedings – neither was successful

And do you even believe that the current crop of establishment politicians would ever allow something like that take place?

Regarding the latter… never… not even if hell freezes over.

Danny on July 1, 2011 at 3:18 PM

Panties Bloomers on fire.

petefrt on July 1, 2011 at 12:06 PM

This is purely a guess mind you; I have no first-hand knowledge.

(((((shudders)))))

pain train on July 1, 2011 at 3:56 PM

Confirmation hearings are under oath. I see a perjury charge in Kagans’ future.

Only if the Republicans go after her.

YehuditTX on July 1, 2011 at 4:28 PM

Dude, seriously.

How many impeachable offenses will Congress allow Obama to get away with? If Kagan lied, then the Dalai Obama knew about it, and conspired with her to perpetuate that lie while testifying before Congress. Under interrogation, Kagan may even reveal that the Dalai Obama SUBORNED PERJURY. The House has subpoena powers; they need to start using them, heavily, laying one on the desk of Holder, Kagan and the Dalai Obama, himself. He’s defied the Constitution with ObamaCare and it’s illegal mandates. He’s defied the Constitution with his illegal war on Libya. And now we’re finding out this?! Get rid of the bastard, and send her to prison with him.

Virus-X on July 1, 2011 at 4:37 PM

How many impeachable offenses will Congress allow Obama to get away with?…

Virus-X on July 1, 2011 at 4:37 PM

There is no limit to what little Bammie can get away with. I could ramble on in a couple of paragraphs saying why, but to be blunt -it’s because he is black.

slickwillie2001 on July 1, 2011 at 5:20 PM

Dude, seriously.

How many impeachable offenses will Congress allow Obama to get away with?

Virus-X on July 1, 2011 at 4:37 PM

All of them?

Merovign on July 1, 2011 at 6:49 PM