Terry Jeffrey

Will she recuse herself because a former subordinate -- whom she personally assigned to the issue -- is writing briefs for the administration in Obamacare cases and arguing them in federal appeals courts?

In the same Senate Judiciary Committee questionnaire in which Kagan said she had recused herself as solicitor general from Horne v. Flores, she pointed to the recusal standard she would be obliged to follow as a Supreme Court justice.

If confirmed, she said, she would "look to the letter and spirit" of 28 U.S. Code 455.

One prong of this law says that any "justice, judge or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might be reasonably questioned."

Can a reasonable person reasonably question Kagan's impartiality in the Obamacare cases? Through the Freedom of Information Act, CNSNews.com has secured some internal Justice Department emails that shine a light on the matter.

Acting Solicitor General Neal Katyal -- who has already defended Obamacare in two federal appellate courts--was personally assigned to handle the legal challenges to Obamacare by Kagan herself.

At the time, there was no doubt that both Katyal personally and the Obama administration wanted to defeat those challenges.

In January 2010, shortly after the Senate approved Obamacare, Brian Hauck, senior counsel for Associate Attorney General Tom Perelli, sent an email to Katyal, inviting Kagan's office into the process for planning to defend it in court.

"Hi Neal," Hauck wrote. "Tom wants me to put together a group to get thinking about how to defend against the inevitable challenges to the health care proposals that are pending, and hoped that OSG (Office of Solicitor General) could participate. Could you figure out the right person or people for that? More the merrier. He is hoping to meet next week if we can."

Kagan's top deputy responded with zeal: "Absolutely right on. Let's crush them."

He then forwarded Hauck's email to Kagan, volunteering himself for the job. "I am happy to do this if you are ok with it," he told Kagan. "Otherwise (Deputy Solicitor General) Ed (Kneedler) would be the natural person. Or both of us."

Kagan decisively gave Katyal the job. "You should do it," she emailed back.

Later that day, Katyal let Hauck know by return email that Kagan's office was in all the way on planning the legal defense of Obamacare.

"Brian, Elena would definitely like OSG to be involved in this set of issues," Katyal wrote. "I will handle this myself, along with an Assistant from my office (name redacted) and will bring in Elena as needed."

Now what Katyal needs is not Elena's permission to handle the case, but her vote to save her old boss's law.

Will she give it the old Harvard try?

Terry Jeffrey

Terence P. Jeffrey is the editor-in-chief of CNSNews

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