Simply Amazing: Kagan Hasn’t Recused Herself from Obamacare

Evidence continues to mount that Supreme Court Justice Elena Kagan is not able to impartially decide the constitutionality of Obamacare when it comes before the Court later this year. As the RNLA pointed out last week, two legal watchdog groups have both recently taken positions advocating Justice Kagan’s recusal.

Those positions have now grown stronger in the wake of a newly released e-mail exchange between then Solicitor General Kagan and law professor Larry Tribe, then also with the Department of Justice. In their discussion, dated March 21, 2010, General Kagan can barely contain her excitement at the prospect that the months-long political fiasco that preceded Obamacare’s passage is finally at an end. In response to Mr. Tribe’s email with the subject line, “fingers and toes crossed today!” Kagan enthusiastically responds, “I hear they have the votes, Larry!! Simply amazing.”   

This latest belated disclosure of General Kagan’s understandably partisan posture regarding Obamacare has prompted Senator Jeff Sessions, of the Senate Judiciary Committee, to submit a series of follow-up questions to Attorney General Eric Holder regarding General Kagan and Obamacare. In the November 15 letter, he also criticized the Department of Justice’s apparent stonewalling of legitimate information requests and the lack of satisfactory explanations for contradictory testimony. Senator Sessions described Attorney General Holder’s insolence thusly:  

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. The Department’s failure to provide this information to Congress and to comply with FOIA requests, as well as your apparent inattention to these matters, is unacceptable.

There needs to be a complete review of Justice Kagan’s impartiality by the proper congressional committees with the Department of Justice’s complete and prompt cooperation. When the Supreme Court granted cert to the Obamacare case last week, Justice Kagan did not announce that she would recuse herself.  There seems to be more evidence raising concerns about whether she can really be impartial.  Yet she has shown no indication that she will recuse herself.  Now, Larry, that is what is ‘simply amazing.’