'Integrity of the court requires a full airing of those facts'
Elena Kagan served as Barack Obama’s solicitor general during the time that a legal strategy to defend Obamacare was being assembled, and Judicial Watch, which investigates government corruption, now has filed a lawsuit to gain access to records of her role in the Obamacare discussions.
That’s because of the convergence of her appointment to the U.S. Supreme Court and that court’s scheduled review of Obamacare in just a few weeks.
Kagan so far has refused to recuse herself from the case, considered one of the biggest cases ever to confront the court since it would impose a social program requiring every person in the country to purchase government-specified health insurance or face the wrath of Washington in the form of fines and penalties.
E-mails that previously were obtained by the organization suggest Kagan and her staff in the White House “may have participated in discussions pertaining to the legal defense of Obamacare,” Judicial Watch said.
“Other records show then-Solicitor General Kagan commenting excitedly on the passage of Obamacare,” Judicial Watch reported.
But the administration has refused to comply with Freedom of Information Act requests for details regarding just exactly what Kagan did in the development of the Obamacare strategy.
“This is no time for the Obama administration to stonewall and obfuscate,” said Tom Fitton, the chief of Judicial Watch. “We hope the court will force the Obama administration to respond to our request in a manner consistent with federal law.”
He said, “The American people deserve to know how deeply involved Elena Kagan and her top deputies were in shaping the Obama administration’s legal defense of Obamacare. The integrity of the courts requires a full airing of those facts before she participates in ruling on a matter she may have helped prepare for litigation. There is more information at the Justice Department but clearly Eric Holder intends to run out the clock.”
In an earlier FOIA action, Judicial Watch obtained copies of some e-mails that indicated Kagan was cheering the Obamacare developments.
The new legal action, Judicial Watch is seeking “calendars, schedules, phone logs and agenda” for Kagan and several deputies, Neal Katyal, Edwin Kneedler, Malcolm Stewart and Michael Dreeben.
Katyal, Kneedler, Stewart and Dreeben all were deputy solicitors under Kagan.
Judicial Watch said the Obama administration was required by law to respond to the FOIA request by January 25, 2012. But neither have any records been released nor has any explanation been given about why records should be withheld.
“Justice Kagan has said that she was not ‘substantially’ involved in the DOJ discussions regarding Obamacare’s constitutional or litigation issues. The White House, despite repeated inquiries, has refused to confirm to Judicial Watch that Justice Kagan was ‘walled off’ from Obamacare defense discussions while at the DOJ,” Judicial Watch said.
Separately, Larry Klayman, the founder of Judicial Watch who now directs Freedom Watch USA, has challenged the Supreme Court to have Kagan removed from the deliberations over Obamacare.
In a motion to the court, Klayman explained the issue of judicial integrity is even more important that the substance of the Obamacare dispute itself.
“The ‘greater’ issue is the integrity of the Supreme Court itself and whether or not it will adhere to and respect centuries old rules of judicial ethics, which require a judge to recuse herself when she has a conflict of interest and when to continue on the case would create even the appearance of partiality,” Klayman said in the motion.
He wrote that in addition to Kagan’s “conflict of interest” because of her work in the White House, apparently including on behalf of Obamacare, she also reportedly advocated for Obamacare in another case.
“This act constitutes not only a conflict of interest, but creates more than the appearance of partiality, for which she must recuse herself or be disqualified by the court,” he wrote.
“If the Supreme Court does not adhere to accepted rules of judicial ethics in this case, and others, it will lose credibility as the ‘People’s Supreme Court,’ and indeed its ultimate decision herein will be forever held illegitimate and tainted by judicial misconduct. This is why the issue of Justice Kagan’s recusal or disqualification is even more important than the underlying issues of this Obamacare case itself. It will have a lasting effect on the integrity of the Supreme Court and how Americans view their court,” he said.
Klayman earlier cited statements in e-mails that reveal “Kagan’s personal bias in favor of the act.”
Among the evidence cited is an e-mail from March 21, 2010, when Kagan, “then senior counselor for access to Justice Laurence Tribe, wrote, ‘I hear they have votes Larry!! Simply amazing . . . ‘ Tribe then responded, ‘So healthcare is basically done! Remarkable.’”
Additionally, on March 16, 2010, there was an e-mail from Kagan to David Barron, asking if he had seen a Wall Street Journal article on the issue.
And Deputy Solicitor General Neal Katyal told Kagan in a 2009 email, “We just got [Olympia] Snowe on health care.”
Klayman wrote, “Without a neutral, unbiased Supreme Court, there simply is no rule of law and any decision concerning the act will be seen as illegitimate.”