Talk about legal prejudice. Talk about audacity.
Supreme Court Justice Kagan is about to hear arguments and rule on the legalities in one of the most controversial cases in history: Obamacare. Never mind that she has long history of being a loyal subject of Barack Obama. A long time friend from the Harvard law school, she was an Obama appointee to the position of Solicitor General of the U.S. in 2009, whose job it was to argue cases representing Obama to the Supreme Court. She was one of the president’s cheerleaders for the passage of Obamacare. She is unequivocally in the Obama camp. This justice will not, and probably cannot, approach the case with any modicum of objectivity. She owes her butt to the president.
Justice Kagan may be a brilliant legal mind, but that’s a separate issue from integrity.
Title 28, Section 455 of the United States Judicial Code provides that a federal judge:
“shall disqualify himself in any proceeding in which his/her impartiality might reasonably be questioned.” The same section also provides, “where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding; when the judge has previously served as a lawyer or witness concerning the same case or has expressed an opinion concerning its outcome…”
In 2009, national health care was the biggest political issue in the United States domestic front. Solicitor General Elena Kagan was right there, in the political and legal trenches rooting it on.
From a Washington Post column on November 16th, 2011:
• An October 13, 2009, exchange between Kagan and former Deputy Solicitor General (and current Acting Solicitor General) Neal Katyal. Katyal informs Kagan, “We just got Snowe on health care,” referring to Senator Olympia Snowe (R-ME).
• A March 21, 2010, email from Kagan to then-Senior Counselor for Access to Justice Laurence Tribe: “I hear they have the votes Larry!! Simply amazing?” Tribe responds, “So healthcare is basically done! Remarkable.”
• A March 16, 2010, email from Kagan to David Barron, then-acting head of the Justice Department’s Office of Legal Counsel, asked if he had seen an article by Michael McConnell published in the Wall Street Journal that discussed a strategy by Democrats to “‘deem’ ObamaCare into Law without voting.” “Did you see Michael McConnell’s piece in the wsj?” Kagan writes in an email with the subject line “Health care q.” “YES, HE IS GETTING THIS GOING,” replied Barron.
This is like having Jim Brown serving as a judge in the O.J. Simpson case.
The close political attachment to Obamacare clearly deems Kagan a non-partial justice in this matter. She knows that. Obama knows that. The mainstream media knows that. Shame on them all for letting this slide.
It appears we have reached beyond the levels of integrity we saw from past justices. From Wikipedia:
Justice Sandra Day O’Conner generally did not participate in cases involving telecommunication firms because she owned stock in such firms, while Justice Stephen Breyer has disqualified himself in some cases involving insurance insurance companies because of his participation in a Lloyd’s Of London syndicate. Justices also have declined to participate in cases in which close relatives, such as their children, are lawyers for one of the parties. On occasion, recusal takes place under more unusual circumstances; for example, in two cases, Chief Justice William Rehnquist stepped down from the bench when cases were argued by Arizona attorney James Brosnahan, who had testified against Rehnquist at his confirmation hearing in 1986. Whatever the reason for recusal, the United States Reports will record that the named Justice “took no part in the consideration or decision of this case.”
It is essential in all levels of the judiciary that the mere appearance of impropriety in any legal matter be dissuaded, which is the responsibility of the sitting judge. If an judge cannot do that, especially a Supreme Court Justice, they should not be a judge at all.
If re-elected for four more years, it’s likely Obama will be appointing at least two more justices who will loyally carry out his bidding, with prejudice. Keep that in mind.
Meanwhile, let’s demand that Justice Kagan recuse herself, now.