A huge cloud looms over the coming U.S. Supreme Court decision on Barack Obama's health-care law, dubbed Obamacare, that could undermine any portions of the law that are upheld, according to a key Washington watchdog organization.
The issue, which has been raised several times by Judicial Watch, is that Elena Kagan served in the Obama administration when the law advanced through Congress and now is on the Supreme Court bench sitting in judgment of it.
"Justice Kagan should provide the American people a full explanation about her refusal to recuse herself in light of the new information about her potential involvement with Obamacare when she served as solicitor general," Tom Fitton, president of Judicial Watch, told WND.
"And the Department of Justice's stonewall of our information requests shows that [Attorney General] Eric Holder is, once again, in full cover up mode," he said today.
Judicial Watch confirmed it still is waiting for an answer from Kagan and the DOJ to questions about her involvement in and support for the law during its construction phase.
"It is a real scandal that she and DOJ refuse to provide more information," the organization reported.
Email exchanges previously made public reveal that during Kagan's time as solicitor general, her office helped develop a strategy to defend Obamacare legally.
Ordinary judicial ethics would mandate that if she participated in such discussions, she should not later sit in judgment of the law, Judicial Watch has argued.
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 several months ago wrote in a letter to Kagan challenging her participation in the case:
"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. Those efforts include a Freedom of Information Act lawsuit against the Department of Justice for not releasing the information.
The group also sought access to calendars, schedules and phone logs for Kagan and others.
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.'"
Klayman has 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 at the time: "Without a neutral, unbiased Supreme Court, there simply is no rule of law and any decision concerning the act will be seen as illegitimate."
Fitton told WND that if Judicial Watch doesn't "get full disclosure from either Justice Kagan or the DOJ, Americans will have fair reason to question whether the Supreme Court impartially handled the Obamacare constitutional charges."