When asked by Senator Mike Lee (R-UT) about Supreme Court Justice Elena Kagan’s involvement in the framing of and defense of Obamacare while she served as Solicitor General, president Obama’s chief legal council throughout the process, Holder makes the statement that not only wasn’t she involved, but when the topic of Obamacare came up she was asked to leave the room.
Carrie Severino over at Judicial Crisis Network lays out the case that not only was Kagan heavily involved in every phase of Obamacare, but she was went to extraordinary measures by involving the office of the Solicitor General in the earliest defense strategy at the lowest levels of the court system.
Because it is so unusual for the Solicitor General’s Office to get involved at the District Court level, not to mention before a law is passed, Kagan’s approval, tacit or explicit, would have been required. The fact that she encouraged her Office’s involvement at such an early stage could only mean that she believed it was necessary to ensure that the strongest possible arguments in defense of the law would be raised at the outset to set the stage for all the appeals that would certainly follow. Her actions had the added effect of communicating to the President and the rest of his Administration that the Solicitor General herself was on top of the legal challenges from the beginning and would not be caught off guard.
Severino goes on to debunk the premise of Holder’s statement.
During her confirmation hearings, Kagan stated that she was present at “at least one” meeting in which the challenges to PPACA were discussed. But JCN has obtained documents indicating that her involvement was much more substantial than merely attending a single meeting.
So here we go again. Just like in ‘Fast and Furious’, Eric Holder is either woefully incompetent and ill informed or he is purposefully obfuscating and lying.
No matter. Either way, it is quite evident that for Elena Kagan to sit in judgement on the Obamacare Supreme Court proceeding is an unacceptable violation of judicial ethics. She’s been involved with Obamacare throughout the process and again, referring back to Carrie Severino’s excellent article, the answer is obvious.
It requires recusal where the judge “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 in controversy.” 28 U.S.C. §455(b)(3).
If you prefer the uneditorialized raw video footage of the Lee/Holder exchange without the dulcet tones of Frank Black click below. Most of it is on Fast and Furious.