The Justice Department refuses to release documents pertaining to Elena Kagan’s role in the healthcare reform debate
The battle over healthcare reform is just beginning to make its way through the court system and there is a battle brewing over which Supreme Court justices should even hear the case once it makes its way to the Supreme Court. Liberals are already pushing Justice Clarence Thomas to recuse himself from the healthcare reform case because of his wife’s former affiliation with an anti-healthcare reform advocacy group and conservatives are concerned about Justice Elena Kagan’s role in the debate over the law while she was an advisor in the Obama Regime.
One conservative group–Media Research Center–has made a Freedom of Information Act (FOIA) request for documents relating to Elena Kagan’s role in the healthcare reform debate while she was a member of the Obama regime, but not only has the White House been non-responsive, the Justice Department is challenging the request in court.
The original FOIA request was filed by CNSNews.com and asked for any records which might indicate that Elena Kagan may have offered an opinion regarding the healthcare reform law while the subject was still being debated because, according to federal law, if Elena Kagan did indeed offer an opinion during the debate she would be required to recuse herself from the case once it is heard by the Supreme Court.
So while the Obama regime continues to dither and fight against releasing these documents, one can logically come to the conclusion that there is the very real possibility that if the documents were released Elena Kagan would have to recuse herself–why else would the administration not be forthcoming and upfront? (Especially considering that we were promised the most open and honest administration in history.)
I also find it very telling that the 74 Democrats who have written to Justice Thomas asking him to recuse himself over a perceived conflict of interest because of a position his wife once held (but no longer does hold) seem to be ignoring the fact that Barack Obama is trying desperately to hide Elena Kagan’s role in the months leading up to the passage of this unconstitutional bill. It would seem on the surface as if Elena Kagan has more of a reason to recuse herself from this case than does Clarence Thomas, but of course we will never know for sure unless the documents are released–and that is exactly why Barack Obama doesn’t want them released.
In the end the decision of recusal lies solely with the justices involved as there is no provision for the federal government to remove a Supreme Court justice from an individual case. Both Justice Thomas and Justice Kagan will have to look into their consciences and decide for themselves whether or not they should preside over the healthcare reform law debate, but one has to wonder what the Obama regime is trying to hide.
What is that that I just saw fly out the window? Oh, I know, it was the last vestiges of Barack Obama’s transparency promise.
America's Watchtower 
Why am I not surprised! head shake!
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Nope, not surprising at all!
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You know, you make it sound as if Mrs. Thomas left that organization years ago, before there was even the hint of a healthcare reform bill. the fact is she was in the thick of the debate over it. If she resigned, it’s just been within the past few months. Some news outlets are claiming that she received what for most of us would be a large sum of money – about $700k. I don’t think there’s any question but that Justice Thomas should recuse himself from this case wince his wife’s taken such a highly visible position against it.
There shouldn’t be any question about Mrs. Kagan, either. She was a major player in the Obama White House, and it stretches credulity to believe that she wasn’t involved either in discussions of political strategy or legal formulation.
As to whether or not the bill is unconstitutional, that’s obvious – if it were unconstitutional, it wouldn’t be headed for SCOTUS.
Have a wonderful week and may God bless us all!
TGY
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Don’t misunderstand – the bill is headed for SCOTUS to determine its constitutionality, and the sooner, the better. If it were unconstitutional, it wouldn’t be headed for SCOTUS, and if it were constitutional, it wouldn’t be headed there either. It’s because questions exist about its constitutionality that it’s being sent to SCOTUS.
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I wasn’t trying to defend Clarence Thomas with this post, but trying to point out that the same Democrats who feel he should recuse himself should also be conserned about Elena Kagan. I don’t know if you read my first post on the Clarence Thomas issue, but I did state that the Democrats do have a point here. I also stated that the Supreme Court should be apolitical. (Of course we know that it isn’t in most cases.)
I also think that it was extremely short-sighted for Virginia Thomas to start a group which opposes a law which many of us thought from the beginning would make its way to the Supreme Court. In the end, both Thomas and Kagan must do what they feel is right.
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Yeah, you’re right, you didn’t automatically insist that Thomas should hear the case just because he’s perceived tto be on the conservative side. . . . I just thought the comment that she’d already quit the group to be a justification of him not recusing himself. Overall, I think the good Justice has a problem on his hands – not many SCOTUS spouses that I’m aware of become political activists. Couple that with her curious call to Anita Hill last year and I think he has a problem to deal with at home.
As to doing what’s right, I’d be tickled pink to see both recuse themselves. Thomas is an old hand at this by now, but Kagan should watch an old movie called “First Monday,” with Walter Matthau, about the first woman on the Court – she gets caught up in something or other, it doesn’t matter, and she wants to resign, and Matthau tells her not to worry, because now she’s beholden to nobody. If Kagan recuses herself over the President’s expectation, that’s her right and there’s nothing he can do about it.
Take good care and may God bless us all!
TGY
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I was trying to use the comment about Thomas’s wife having already left the job to make the point that the Democrats who sent him that letter seem to not care that Kagan herself once held a job which might preclude her from sitting on this case.
I think that there is a good chance that neither Thomas nor Kagan will be sitting on the bench when this case is decided.
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It sounds to me like Justice Thomas should probably recuse himself from the case, but I also think Justice Kagan should do the same. As Georgia Yankee said, it is a very big stretch to think she had nothing to do with the debate over the health care law, given how high she was in the Obama administration. I look for Justice Thomas to do what is right, but I expect the Obama administration to ignore that and do what is politically expedient. I will be very surprised if Kagan doesn’t stay on the bench and rule on the case.
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I feels as if Thomas is going to recuse himself from this case, but Kagan has already recused herself from a number of cases and I think it will be hard for her not to recuse herself on this one in good conscience.
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Either way, now I wonder if there’s more to see in the FOIA request. Those docs should be released regardless.
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I agree, the Obama regime is trying to hide something and we deserve to know what it is!
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I don’t believe Justice Thomas should recuse himself because clearly he did not give legal advice to an administration or legislator on ObamaCare. If we starting condemning people based on the actions of others where are we heading as a nation. As for Justice Kagan, if there is nothing to hide then release the dang papers.
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Thomas didn’t have to give legal advice – his wife was involved in a stridently anti-Obamacare group, and may have profited her involvement with that group. As I understand it, her involvement with the group ended, but only recently. You cannot unring that bell.
As to the “if you have nothing to hide, reveal it” argument, there all sorts of reasons that flies in the face of what we as Americans believe. There’s all sorts of information about me that’s neither harmful nor criminal, but it’s nobody’s business but mine, and it’s definitely not the government’s business. With respect to Kagan, the requested documents may have legitimate issues of executive privilege similar to what VP Cheney claimed when he refused even to let anyone know who he met with when he was formulating the nation’s energy policy.
I’m not saying Kagan shouldn’t recuse herself, I’m saying “if you’ve got nothing to hide, stop hiding it” is a crappy argument, relying on intimidation and bullying, not logic or righteousness, for validity.
Take good care and may God bless us all!
TGY
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If these document have executive privilege why is the Obama regime–as Harrison noted below–not giving a reason for not releasing these documents? That would seem like the logical defense but they have not used it.
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John, I agree with you on Kagan, release the papers and prove there is no conflict, if they do not do this we can all rest assured that there is a conflict there. As for Thomas, I think this is a tricky situation. While I also feel that one person should not be held accountable for another’s actions, and while there appears to be no instance in the history of the Supreme Court where a justice recused himself because of his spouce’s actions, I still wonder about Thomas ability to rule on this case because his wife benefited from her opposition to it.
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Amazing not even a reason given!
On Dec. 30, the Justice Department filed an answer to the MRC’s complaint, asking the court to dismiss the complaint, but not citing any specific exemption in the Freedom of Information Act that would justify such a dismissal.
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It is interesting that while refusing to release the papers they are also refusing to even invoke a “states secrets” defense, that would seem the logical excuse for them to give but they are not. Why?
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Geez if Bush did this… LOOK OUT!
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So what happens if they refuse to comply? Anything? They’re barreling ahead with Obamacare despite it’s illegality.
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I don’t know what happens, we have already seen the Obama regime ignore the court ruling on the oil drilling moratorium and we have seen him ignore the latest healthcare ruling and nothing has happened yet!
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If Clarence Thomas should recuse himself because of his wife’s political jobs, activities, or opinions, then my husband should leave the Navy because his wife criticizes his boss, Teh President.
It’s a trumped up non-issue pushed by leftists who are desperate to preserve Obamacare by any means necessary. Volokh can explain:
“Justice Thomas is not the only judge to have had a spouse in a prominent political role. . . . What we have here is the inevitable result of the growing equality of women, the resulting growing tendency of lawyers to marry lawyers (and lawyers are disproportionately likely to go into politics) . . . .the fact that a spouse has a high-profile political position doesn’t add much to existing predispositions. In particular, I don’t think that the desire to remove any such mild additional influence of the judges justifies limiting the lives of the judge’s spouses and children.”
http://volokh.com/2010/03/14/justice-thomas-and-judge-reinhardt/
And it’s apples and oranges to compare Kagan to Thomas, as she actually represented the defendant in the case which she will now be ruling upon if she doesn’t recuse herself.
While ethics class in law school often got complicated, and the lines blurry, this one is a no-brainer. The appearance of impropriety is obvious when you have someone ruling on a case when she previously represented one of the parties to the suit during which time the subject of the suit was relevant.
Cheers!
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It’s hard to maintain the appearance of “impartiality” when your wife is among those leading the public parade against Obamacare. From the letter signed by 74 House members:
“Your spouse is advertising herself as a lobbyist who has ‘experience and connections’ and appeals to clients who want a particular decision — they want to overturn health-care reform.”
When you get a letter from the wife of a Supreme Court Justice, and that letter says she has connections, just what do you suppose is implied there? Or inferred? She’s trying to profit from her relationship with the Justice with respect to soliciting clients to hire her lobbying firm to lobby against healthcare reform. Who do you think she’s suggesting she can lobby?
Don’t misunderstand — I think Kagan by rights needs to recuse herself, but Thomas does as well.
Take good care and may God bless us all!
TGY
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Fer heavens sake. Perhaps Mrs. Thomas is actually saying the obvious: she can lobby Congress just like all lobbyists do.
The woman has been an attorney and worked in DC and politics for a long time. Suffice to say she has experiences and connections of her own.
The accusation that she is implying she will influence her husband’s ruling on a Supremem Court case is an insulting smear with no basis in reality other than “well they ARE married.”
Really, as a female it’s hard to not be insulted by this insinuation. As though we are not allowed to have opinions or careers of our own if our husband holds a particular position.
With this reasoning, my husband is guilty of criticizing his commander in chief through me, his wife.
Is your opinion that I too, should not be allowed to be politically active?
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(Especially considering that we were promised the most open and honest administration in history.)
But only on a need to know basis. And guess who decides if we need to know.
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Exactly!
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This wasn’t difficult to see coming. The outcry against Thomas was to take the attention off of Kagan. Now, the justice department is trying to hide Kagan’s participation.
Typical liberal tactics folks. We should not be surprised.
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A little preemptive strike and we know that the media will focus on the Thomas angle while ignoring the Kagan angle.
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Compliance for court orders or FOIA’s are just too hard for Obama to swallow…. face it, the Dictatorship is well on its way. Great discussion.
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I am afraid you are right, Obama feels as if he can do whatever the hell he wants to and if the courts do not step up I suppose he can.
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