Justice Kagan may have lied at her confirmation hearings

Posted by: Phineas on December 9, 2011 at 8:22 pm

**Posted by Phineas

And she should recuse herself from any ObamaCare hearings before the Supreme Court, because of it:

Internal Justice Department email communications made just days before the House of Representatives passed the Patient Protection and Affordable Care Act show that then-Solicitor General Elena Kagan was brought into the loop as DOJ began preparing to respond to an anticipated legal complaint that Mark Levin and the Landmark Legal Foundation were planning to file against the act if the House used a procedural rule to “deem” the bill passed even if members never directly voted on it.

In another internal DOJ email communication that same week, Kagan alerted the chief of DOJ’s Office of Legal Counsel to the constitutional argument that a former U.S. Appeals Court judge was making against the use of this rule.

Then, during Kagan’s Supreme Court confirmation process four months later, Republicans on the Senate Judiciary Committee asked her in writing if she had “ever been asked about your opinion” or “offered any view or comments” on the “the underlying legal or constitutional issues related to any proposed health care legislation, including but not limited to Pub. L. No. 111-148 [PPACA], or the underlying legal or constitutional issues related to potential litigation resulting from such legislation?”

Kagan answered both questions: “No.” (PDF. See questions 8 and 9 in particular. –PF)

Well. I’d say that’s pretty straightforward, wouldn’t you?

Personally, I’d guess she was lying at her confirmation hearings. That’s grounds for impeachment in my book, but that’s politically out of the question. However, far from being “walled off,”  it is clear that she was involved in at least some aspects in a substantive manner and that her objectivity can be called into question. I cannot imagine for a minute that the Solicitor General of the United States would not have offered an opinion or advice on strategy in a case that threatened the overriding goal of the administration in which she served. As the article points out, per statute, justices are required to recuse themselves in such cases.

Read the whole piece. At the very least, I think the revealed emails raise serious questions about Justice Kagan’s ability to impartially rule on ObamaCare.

via Legal Insurrection

(Crossposted at Public Secrets)

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17 Responses to “Justice Kagan may have lied at her confirmation hearings”

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  1. Rovin says:

    Personally, I’d guess she was lying at her confirmation hearings. That’s grounds for impeachment in my book, but that’s politically out of the question

    Out of the question this year, but maybe not in 14 months. Nothing would please me more than to have a lying liberal SCJ impeached with a filibuster-proof GOP-controlled government. Could you just hear the liberal press going buzz-erk over the process. However, the real problem is this federal mandate—pure over-reach of federal power—should be defeated by a 9-0 decision, and Kagan’s position on the bench should be moot.

  2. Rovin says:

    If anyone listens to the opening statement in the hearings with Eric Holder, there is sufficient evidence to preclude that Kagan had a fiduciary responsibility to defend ObamaCare. The first five minutes of this hearing explains this:

    http://www.c-span.org/Events/Atty-Gen-Holder-on-Operation-Fast-and-Furious/10737426112-1/

  3. Stanton says:

    She lied? No way!

  4. Dave B says:

    Unfortunately elections have consequences. The President gets to nominate Justices. However, if she lied in the hearings then she should at least recuse herself before she becomes the target of an impeachment hearing. In a strange way she might do more for conservatives by attempting to rule on the Obamacare case. If she recuses herself she would still be a liberal activist member of the Supreme Court that will affect our lives and our children’s lives forever. If she doesn’t she might find out that the Country is no longer in the mood for this type of shit. The party is over.

  5. Drew the Infidel says:

    Since the day BO was elected, and I still have misgivings about that, I have had what feels a brick in the pit of my stomach. This kind of crap helps explain why.

  6. Brontefan says:

    It won’t matter f she lied! Currently the American public is willing to accept the corrupt Chicago political manner of operating… especially all those still adamantly supporting Obama. The only explanation is that as long as the welfare checks keep coming…. they will vote for a Marxist. This woman is a personal friend of Obama; note how many radicals surround our president!

  7. BK says:

    “However, the real problem is this federal mandate—pure over-reach of federal power—should be defeated by a 9-0 decision, ”

    Not really. If the Supreme Court can rule that the federal government has authority over purely intrastate commerce (Wickard v. Filburn, 317 U.S. 111 (1942),) and that the government can take private property for PRIVATE USE (Kelo) – then the mandate is likely to be found constitutional. SCOTUS does have this nasty “who cares about the constitution” streak sometimes. Especially about the Tenth Amendment interpreted as “OK the Federal government cannot become a totalitarian state, but the state and local governments can”

  8. scooterjay says:

    I see already that citizens will have to take up arms next fall. folks, it is going to be ugly!

  9. PE says:

    De jure: she lied and should be impeached. De facto: she is an Obamian Democrat and therefore transparent to those rules of law which Democrats would apply to conservatives. Cases in point: the big O, Eric Holder, et al.

    My compliments to the weasel brained Republicans who voted to seat her.

  10. heir2freedom says:

    She will not be impeached nor will she recuse herself. Obama nominated this fawning, progressive munchkin for the express purpose of stacking SCOTUS for exactly this fight. The only way to temporally end Obama’s reign of terror is to vote him out and deliver the Senate to conservatives in 2012. Until then, the wreckage shall continue.

  11. Zachriel says:

    Not sure we understand the point. Where does it indicate she “offered any view or comments” on the “the underlying legal or constitutional issues related to any proposed health care legislation, including but not limited to Pub. L. No. 111-148 [PPACA], or the underlying legal or constitutional issues related to potential litigation resulting from such legislation?”

    Being “brought into the loop” could just mean she was cc’d on emails. Passing on someone else’s opinion about the legislative procedure is not the same as offering an opinion on the bill itself.

  12. Carlos says:

    “In another internal DOJ email communication that same week, Kagan alerted the chief of DOJ’s Office of Legal Counsel to the constitutional argument that a former U.S. Appeals Court judge was making against the use of this rule.”

    Gosh, Zachriel, that sounds exactly like what you’re arguing that she didn’t do.

    But not to worry. With Holder laying the groundwork of what is and isn’t a lie, she now has protection by argument of the USAG if she’s ever brought up for impeachment. Besides, Congress would have to decide if perjury fell under the “high crimes and misdemeanors” clause, no easy task as demonstrated by a former perjurious president.

    The lying liars and skags that support them are beyond belief sometimes.

  13. Zachriel says:

    Carlos: Gosh, Zachriel, that sounds exactly like what you’re arguing that she didn’t do.

    The question concerned legal or constitutional questions about the legislation. The rule concerned the legislative process itself. Also, passing on someone else’s opinion is not an opinion.

    You may consider her biased, but the claim was that she lied.

  14. Carlos says:

    Gosh, Zachriel, I must not be very good at understanding the English language, what with all its nuances and penumbras and all created by the courts.

    “Then, during Kagan’s Supreme Court confirmation process four months later, Republicans on the Senate Judiciary Committee asked her in writing if she had “ever been asked about your opinion” or “offered any view or comments” on the “the underlying legal or constitutional issues related to any proposed health care legislation, including but not limited to Pub. L. No. 111-148 [PPACA], or the underlying legal or constitutional issues related to potential litigation resulting from such legislation?”

    I might be just a tad skeptical if one were to tell me that, simply by answering that question with a resounding “No!” she was not answering quite truthfully, since she is known to have given a heads-up about possible court challenges and giving some direction to how to respond.

    But what do I know? I’m just a dumb country neanderthal dragging my knuckles whenever I try to walk to the kitchen to tear a mastadon leg off anf gnaw on it for a while…

  15. Zachriel says:

    Carlos: I must not be very good at understanding the English language, what with all its nuances and penumbras and all created by the courts.

    Being “brought into the loop” does not necessarily mean she offered an opinion. Sending forward someone else’s opinion is not offering an opinion. The opinion which was forwarded did not concern the legislation, but legislative procedure.

    Carlos: I might be just a tad skeptical if one were to tell me that, simply by answering that question with a resounding “No!” she was not answering quite truthfully, since she is known to have given a heads-up about possible court challenges and giving some direction to how to respond.

    The information provided doesn’t constitute evidence of dishonesty.