Bob Unruh joined WND in 2006 after nearly three decades with the Associated Press, as well as several Upper Midwest newspapers, where he covered everything from legislative battles and sports to tornadoes and homicidal survivalists. He is also a photographer whose scenic work has been used commercially.More ↓Less ↑
The attorney who founded Judicial Watch, became a thorn in the side of presidents in court including Bill Clinton, inspired a “West Wing” character and was the first lawyer to obtain a court ruling that a president committed a crime has filed a request with the U.S. Supreme Court that Elena Kagan either remove herself or be removed from the Obamacare case.
The friend-of-the-court brief in cases demanding the “recusal or disqualification of Justice Elena Kagan” was filed today by Larry Klayman, now of Freedom Watch USA.
Klayman, known for tackling corruption in the nation’s capital, recently was awarded a default judgment in a case brought against Iran President Mahmoud Ahmadinejad on behalf of victims of his government’s torture campaign. Damages have yet to be established, but estimates are it could surpass the hundreds of millions.
Kagan has been facing criticism for her apparent decision to participate in the Obamacare case, which is to be argued in coming weeks, because she served Obama as solicitor general when the law was being developed. Emails indicate she was rooting for it, and she may even have strategized on how to defend it in court.
Klayman’s request comes in the case National Federal of Independent Business et al. vs. Kathleen Sebelius, as well as Florida et al. v. Department of Health and Human Services.
The rulings at the lower level determined Obama could not constitutionally demand that every American buy the health insurance program that the government specifies – a key requirement for his Obamacare nationalization of health care to succeed. Obama’s Department of Justice appealed.
Klayman’s brief says his organization is “dedicated to preserving freedom, pursuing individual rights and civil liberties, while fighting for ethics in government and the judicial system.”
Obamacare, he says, “is seeking to intrude into citizens’ rights, regulating private and intimate aspects of an individual’s life without regard to the Constitution. In doing so, the government is expanding the scope of its limited and enumerated powers to a level never before seen.”
Noting that a majority of Americans oppose Obamacare, he says his organization “seeks to provide the means and mechanism to protect American citizens’ rights.”
Toward that goal, he writes, he is seeking “the recusal, and, if necessary, disqualification of Justice Elena Kagan in the decision of the constitutionality of [Obamacare].”
“She participated in crafting a defense for the constitutionality of the act. She therefore acted as counsel to the drafters in developing a strategy to defend the law,” his brief states. “This role should disqualify Justice Kagan under 28 U.S.C. Paragraph 455(a) because her ‘impartiality might reasonably be questioned.’”
The brief explains Kagan’s case is different from that of Justice Clarence Thomas, who Obamacare supporters want removed from the case because of the actions of his wife, an opponent of the law.
A WND request of the Supreme Court for a comment did not generate a response.
“Kagan’s involvement is not a matter of another member of her family playing a partisan role concerning the act,” Klayman writes. “Her past involvement is personal and direct. The case to recue or disqualify Justice Kagan is thus much stronger.”
He cites statements in emails that reveal “Kagan’s personal bias in favor of the act.”
Among the evidence cited is an email 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 email 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 writes, “Without a neutral, unbiased Supreme Court, there simply is no rule of law and any decision concerning the act will be seen as illegitimate.”
He notes that Chief Justice John Roberts, in his annual report on the court, said the justices “need not follow the recusal and disqualification ethics rules that pertain to other judges.”
“Incredibly, and to add insult to injury, he added that ‘(t)he Supreme Court does not sit in judgment of one of its own members. . . .’ This admission, among others in the report, says it all and ironically underscores why recusal or disqualification of Justice Kagan is necessary to preserve the integrity of the Supreme Court for the citizens of the United States,” Klayman says.
“The court does not belong to either Chief Justice Roberts or any other justice; it belongs to ‘We the People.’ And, if the justices cannot adhere to the rule of law, which includes judicial ethics, then the court must be stripped clean of this lawlessness by removing and prosecuting, through whatever legal means are available, those justices who refuse and fail to play by the same rules that they hold citizens and others accountable for.”
Klayman contends the evidence is clear.
“While serving as solicitor general, Justice Kagan took significant part in health care reform issues and the crafting of the act, participating even by her own concession in at least one meeting in which what became the act was discussed. It is also believed that before the act was even passed, the Department of Justice had, in fact, been meeting to develop a strategy for defending the law from constitutional attacks. Involved in these efforts was Justice Kagan,” the brief states.
“Given her extensive participation in the passage of the act in addition to her incriminating exchanges and emails evidencing her favoritism toward the constitutional of the law, it is clear that Justice Kagan should recuse,” the brief says.
Federal law requires that any judge “shall disqualify himself in any proceedings in which his impartiality might reasonably be questioned.”
“Kagan has not been in the least bit subtle in her opinion regarding the act, brazenly displaying her support of the legislation,” the brief says.
The strategizing on behalf of Obamacare may even include the White House, he says.
“By nominating a justice who had been a fellow proponent of the legislation, President Obama was choosing ‘the judge in his own cause,’” the brief says. “This creates, at the very least, an appearance of a quid pro quo, with the public having a reasonable belief that President Obama selected Justice Kagan in exchange for her ruling on the constitutionality of the act.”
Klayman says, “The strength of this court’s rulings all stem from the high regard that the citizens of the country hold in our judicial system. If the partiality of this court comes into contention on this or any other decision, it is the Supreme Court as an institution that will suffer. Thus, in order to prevent further erosion of the integrity of the court, this court must seek to disqualify Justice Kagan if she does not recuse herself.”
Rep. Lamar Smith, the top Republican on the House Judiciary Committee, earlier suggested the Obama administration was stirring up the problem of Kagan’s neutrality by refusing to release documents that provide her specific role in advocating for Obamacare.
Referring to the 18-minute gap in the Nixon tapes, he said Kagan had a “two-month gap.”
WND previously reported a former federal appeals court clerk has confirmed Kagan’s advocacy for health care policy dates back to the Clinton administration.
She’s also had a special advocacy role in previous issues, including First Amendment limitations, the advance of homosexuality and protection of the government of Saudi Arabia.