Demand Kagan Recuse Herself From Obamacare Litigation


Supreme Court Justice Elena Kagan must recuse herself from deciding on the constitutionality of the Obamacare law, now slated to reach the Supreme Court early next year.

She won’t do it without pressure. Please sign our petition demanding her recusal. We’ll send it to your representatives in Congress and to each of the Justices of the Supreme Court, including Kagan.

Federal law is quite clear on the matter. If a judge “has served in governmental employment and, in such capacity, participated as counsel, advisor, or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case or controversy,” she must recuse herself when the case reaches her court (28 U.S.C. 455 (b)(3)).

The facts are equally clear. As solicitor-general, Kagan was the point person for defending the constitutionality of federal law before the Supreme Court. She was, in effect, the lawyer supporting the health care law. How can she now sit in judgment of it?

Consider these facts:

— Justice Kagan acknowledged to the Senate Judiciary Committee that she played a “role” in the Obama administration’s defense of the Patient Protection and Affordable Care (Obamacare) Act and attended “at least one meeting” where the litigation was discussed.

— Two months before Justice Kagan became aware that she was under consideration for the Supreme Court, she was party to a discussion that included the head of the group charged with defending the law in the courts.

In a letter to Attorney General Eric Holder, Senate Minority Leader Mitch McConnell noted that administration emails indicate that Neal Katyal, Solicitor-General Kagan’s chief deputy, said that he would “speak with Elena” about setting up a working group to plan the defense of the act. Subsequent emails indicate that he did, in fact, speak with Kagan and that she “definitely” wanted her office to participate in the working group. Katyal promised to “bring Elena in as needed” to help his working group. Katyal added that Kagan’s office would be “heavily involved” in planning the defense strategy, “even in the District Court.”

— Katyal and Associate Attorney General Thomas Perrelli, the head of the defense working group, “added Ms. Kagan to an email discussion so they could advise her of a draft litigation complaint” challenging the law. According to the emails, “(Perrelli) discussed his analysis of the plaintiff’s litigation strategy” with Kagan. McConnell notes that Katyal “specifically noted that he was now including then-Solicitor General (in the discussion) to appraise her of his recommendation” on the administration’s legal strategy.

— Kagan was an obvious fan of the Obamacare bill. She wrote law professor Larry Tribe of having her “fingers and toes crossed,” hoping for Congressional approval. “I hear they have the votes, Larry!! Simply amazing,” she wrote to Tribe.

What is indeed simply amazing is that Kagan might actually vote on this case, despite her obvious conflict of interest.

To distract attention from Kagan’s situation, Democrats are raising a fuss over Mrs. Clarence Thomas’ efforts to stop the health care law. But Justice Thomas has expressed no opinion on the statute, nor was he involved in any efforts for or against the bill. Kagan, on the other hand, was the senior administration official plotting strategy to sustain its constitutionality.

Please sign the petition. We need to raise the profile of this issue so that, to protect the integrity of the court, Kagan’s fellow justices will raise with her their concern about her conflicts of interest.

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