Republican pressure is growing for Supreme Court Justice Elena Kagan to step down from the vital hearing that will decide the future of America’s healthcare next year.
Alabama Sen. Jeff Sessions is leading the charge saying that newly released emails seem to show that Kagan was heavily involved in policy discussions on how to make sure Obamacare passed through Congress.
Now Sessions is putting pressure on embattled Attorney General Eric Holder – who, at the time was Kagan’s boss – to come clean on what she knew and when she knew it.
Sessions, who sits on the Senate Judiciary Committee, told Holder he is “deeply disturbed,” that the emails were not released at Kagan’s confirmation hearings in June last year.
Kagan is responsible for making the decision whether she should recuse herself from the case when the Supreme Court hears challenges to President Barack Obama’s signature law next spring. A decision on the constitutionality of the law is expected by late June or July, just in time for the two political parties’ National Conventions.
She has to decide whether her role as Obama’s Solicitor General at the time the law was drawn up and passed could be seen as an unacceptable conflict of interest. The law says, “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”
It goes on to say they should also quit a case “where he has a personal bias or prejudice concerning a party.”
Sessions, who was attorney general of Alabama before he took his seat in the Senate in 1997, fired off a letter to Holder on Tuesday, demanding written testimony on why the emails were not presented before.
“I am deeply disturbed by these developments and believe that the Justice Department should have provided these documents to the Senate Judiciary Committee during Justice Kagan’s confirmation hearing,” he wrote.
“The Department’s failure to provide this information to Congress … as well as your apparent inattention to these matters, is unacceptable.”
In the emails, Kagan expresses her delight that the act was passing through Congress and is kept up to date with its progress.
In perhaps the most damaging email chain from January 2010, two weeks before Obamacare was passed by the Senate, Brian Hauck, the senior counsel to Associate Attorney General Tom Perelli wrote to Kagan’s deputy Neal Katyal, saying that Perelli wanted “to put together a group to get thinking about how to defend against the inevitable challenges to the health care proposals that are pending.”
Katyal immediately replied, “Absolutely right on. Let’s crush them. I’ll speak to Elena and designate someone,” and forwarded Hauck’s email to Kagan with a note saying, “I am happy to do this if you are ok with it.”
Within minutes Kagan responded, “You should do it.” And Katyal, who went on to become acting solicitor general after Kagan was elevated to the Supreme Court, emailed Hauck saying, “Brian, Elena would definitely like OSG (Office of the Solicitor General) to be involved in this set of issues.”
He told Hauck “I will handle this myself,” along with an assistant “and will bring in Elena as needed.”
Kagan has said that she first became aware that she was being considered as a potential Supreme Court justice on March 5, 2010. Seventeen days later the House of Representatives passed Obamacare and she sent an email to Justice Department adviser Laurence Tribe saying, “I hear they have the votes, Larry!! Simply amazing.”
Holder told the Senate Justice oversight committee that he recalled instances in which staff members would “physically, literally move” Kagan out of the room when Obamacare was being discussed. During her confirmation hearings she said her involvement in the matter was limited to one meeting where the matter came up briefly.
Another conservative who thinks Kagan has a conflict of interest in the case is Newt Gingrich , who told Newsmax.TV
in an exclusive interview that she should step down from the case.
“It is unconscionable that a person who actually advised in the writing of Obamacare will now sit in judgment on what they help write," the presidential candidate said. “I think clearly Kagan should recuse herself. It’s clearly a conflict of interest, and I think a very bad judicial setting for her to now be rendering judgment on the bill she helped write.”
As to how the high court will rule in the case, Gingrich says: “You never quite know, but my hunch is that they are going to decide that it is unconstitutional to have a mandate” to buy health insurance.
If Kagan planned to recuse herself the court would normally have announced that she took no part in deliberations when it announced it would hear the case. On Monday the court docket showed that she had taken no part in several cases, but not the vital one “Florida et al vs. Department of Health and Human Services.”
The left has also called on conservative Justice Clarence Thomas to step down as his wife Virginia heads the lobbying group Liberty Central which has been at the forefront of challenges to Obamacare. He too has shown no sign that he will.
But the case against Thomas is not seen to be as strong as that against Kagan, who conservatives say helped craft the law’s defense.
Utah’s two Republican senators, Orrin Hatch and Mike Lee, have both questioned whether she should hear the case. And Louisiana GOP Rep. John Fleming said this week, “Before the Supreme Court case is heard, we need to know if Justice Elena Kagan helped the Obama administration prepare its defense for Obamacare when she was solicitor general.
“The Justice Department must answer serious questions about whether Justice Kagan has an inherent conflict of interest, which would demand that she recuse herself from the Obamacare case,” Fleming added.
But Russell Wheeler, visiting fellow at the Brookings Institute, told The Christian Post, “If she really thought her impartiality was compromised, she would step down.
“No justice wants to say that he or she didn’t have prior contact with the case only to be proven wrong in the near future. No Justice is going to try and pull a fast one, especially in today’s high tech society where the truth will eventually be found out.”
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