Four Republican Senators have joined the growing chorus of elected officials and leadership of citizen groups calling for Justice Elena Kagan to recuse herself from the ObamaCare case now scheduled to be heard by the Supreme Court. In a letter to Attorney General Eric Holder, Republican Leader Mitch McConnell, Whip Jon Kyl, Ranking Republican Member of the Judiciary Committee Chuck Grassley, and Utah Senator Mike Lee called out the "questionable manner" that DOJ and Holder are handling requests for information regarding Kagan involvement with the passage and preparations for legal defense of the legislation when she served as Obama's Solicitor General. The Senators point out that,
"Federal law requires recusal from a case if a judicial officer of the United States “has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case or controversy.” 28 U.S.C. § 455(b)(3). In addition, a federal judge must disqualify herself from participating in a matter if her “impartiality might reasonably be questioned.” Id. at § 455(a). It appears that former Solicitor General Kagan’s participation in the Obama Administration’s defense of the PPACA may satisfy both requirements for recusal." Full text of letter here
The Senators offered as evidence for concern already known details such as her own admission during her SCOTUS confirmation hearing that she had participated in "at least one" meeting regarding the anticipated litigation defense of ObamaCare. Further, email conversations expose the fact that at her insistence her office was to be "heavily involved" in planning the Administration's legal strategy.
Her "impartiality" is seriously suspect, the Senators explain, by a March 2009 email Kagan sent to DOJ Legal Adviser Larry Tribe regarding the impending passage of the legislation. Entitled, "fingers and toes crossed today!" Kagan gleefully wrote, "I hear they have the votes, Larry!! Simply amazing."
Holder and the DOJ "has rejected all Congressional oversight requests for information about her role in the Obama Administration's defense of this law (ObamaCare)," the Senators wrote, and in so-doing have invited far more questions about what the Administration is hiding. "Because of the highly questionable manner in which your Department is handling this important issue," the Senators said in their letter, "we write to underscore the importance to the rule of law of an informed resolution of this question."
As previously described on these pages, a letter was sent earlier this week from the leadership of 85 citizen organizations asking the obvious question "the impartiality of Justice Kagan if she were permitted to prepare the defense of a case as an advocate and then switch roles and judge the defense of the same case as a justice." (Emphasis included)
Holder and DOJ have ignored some Congressional requests for information, and rejected others. More recently, they have insulted Congressional leadership for even inquiring. The latest reply from DOJ to House Judiciary Committee Chairman Lamar Smith included an editorial comment that the Department considered Smith's request "unseemly." So much for open government, for transparency, for congressional oversight, for checks and balances; all promises of this Administration. This is the face of tyranny.