The largest government watchdog organization in the nation has asked Elena Kagan to explain her participation in discussions on Obamacare while she was the White House Solicitor General, because without the facts there would be a “cloud” over the Supreme Court’s decision on the controversial takeover of America’s health care industry.
As “the court ultimately rules on the various legal challenges to the [health-care law], it would be extraordinarily unfortunate if the court’s decision were overshadowed by controversy over your participation in the matter,” Tom Fitton, president of Judicial Watch, said in a letter to Kagan.
“It would leave a cloud hanging over the court’s decision and could undermine public confidence in the impartiality and integrity of the court as an institution,” he wrote.
The issue arose because of Kagan’s participation in discussions about Obamacare during its development. She later was appointed by Obama to the Supreme Court, which is to start hearing arguments on the controversy next week. Critics charge it is unconstitutional for the government to order consumers to buy a product the government specifies.
Email exchanges previously made public reveal that during Kagan’s time as solicitor general, her office was more involved in developing a strategy to defend Obamacare legally than previously had been disclosed.
Ordinary judicial ethics would mandate that if she participated in such discussions, she should not later sit in judgment of the law.
Judicial Watch noted that records that have been released “included an email showing what appeared to be then-Solicitor General Kagan’s excitement and support for the passage of PPACA,” the Patient Protection and Affordable Care Act.
Fitton wrote in the letter to Kagan:
The failure of the Justice Department to produce requested records in a timely manner, the dribbling out of requested records over time, the redaction and withholding of other records, and the refusal to respond to requests for records and information from several members of Congress have contributed to the substantial impression that additional details about your tenure as Solicitor General and the enactment and subsequent legal defense of the PPACA are being withheld from the American people.
Judicial Watch is not calling on you to recuse yourself from the PPACA litigation at this time, just as Judicial Watch did not call on Justice Scalia to recuse himself from the litigation involving the National Energy Policy Development Group (‘NEPDG’) – to which Judicial Watch was a party – in 2004. When a controversy arose during the course of the NEPDG litigation over whether Justice Scalia should recuse himself from that matter, Justice Scalia issued an opinion stating: ‘The decision whether a judge’s impartiality can ‘reasonably be questioned’ is to be made in light of the facts as they existed, and not as they were surmised or reported.’ Justice Scalia then provided a comprehensive recitation of the facts ‘as they existed,’ not as they were ‘surmised or reported,’ and an articulation of the reasoning behind his decision not to recuse himself.
During your confirmation process, you wrote that you would ‘consider carefully the recusal practices of current and past justices’ as well as consult with your colleagues if questions about recusal in particular cases arose. Judicial Watch believes that it would be of substantial benefit to the court’s consideration of the legal challenges to the PPACA if, like Justice Scalia in the NEPDG matter, you were to address the facts surrounding your tenure as Solicitor General and the enactment and subsequent legal defense of the PPACA as they ‘existed,’ not as they are being ‘surmised or reported,’ as well as provide an articulation of your reasoning behind any decision regarding recusal.
The White House, despite repeated inquiries, has declined to affirm that Kagan was excluded from Obamacare defense discussions during that time period.
Judicial Watch has been trying for a considerable time to obtain records that would explain Kagan’s participation in the discussions. Just weeks ago, it filed another Freedom of Information Act lawsuit against the Department of Justice for stonewalling the information.
The latest action seeks access to calendars, schedules and phone logs for Kagan and others.
“We hope that Justice Kagan will give serious consideration to addressing this recusal controversy, so as to provide greater transparency and increase public confidence in the impartiality and integrity of the Supreme Court,” said Fitton.
Another concerned group, Freedom Watch USA, led by attorney Larry Klayman, also has been trying to raise the issue of Kagan’s possible bias.
Klayman requested twice that the Supreme Court address the issue of Kagan’s expressed support for Obamacare but was rejected.
“The integrity of the court is even more important than the issue of the constitutionality of Obamacare,” said Klayman. “Without a court that represents ‘We the People,’ Americans are left without any recourse to combat the tyranny of the other two branches of government. When the colonies saw that they had no recourse against the British crown, they declared their independence and waged a revolution to change their form of government and their rulers. Let us hope that this does not happen again, given the arrogance of establishment institutions like the Supreme Court, which seemingly think they are ‘above the law.’”
He pointed out the importance of stopping even the appearance of untoward influence on the court.
Among the evidence that has been released is an email exchange from March 21, 2010, in which 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 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.”