Ethics? Who Me?

Former Solicitor General, and US Supreme Court associate Justice Elana Kagan celebrated the passage of Obamacare, emails obtained by CNSNews reveal.  This strengthens the case for those who argue that Kagan must recuse herself from the Obamacare case scheduled for hearing by the high court.  Indeed, it would seem a travesty to have this justice sitting in judgment of a law she helped advocate, and in which she seems necessarily biased.  Elana Kagan ought to recuse herself from this case.  Kagan’s appointment to the court was a politically motivated appointment intended to secure leftist dominance of the court for decades. In this case, however, her prior involvement and advocacy is ample reason to suggest that Kagan ought to recuse herself from the case as a matter of judicial integrity. It is therefore doubtful she will step aside on this case.  While she shouldn’t have been permitted onto the court, now that she is there, she must conform to a high standard of ethics.  That standard requires her to recuse herself.

The whole notion of justices recusing themselves from cases before the court has been around a long time. Most frequently, it comes into play when the court is considering some case involving a company that has a matter in litigation, that winds up before the high court,  but it turns out that one of the justices has a current or former investment position with the company in question.  The idea is that the justice could harbor some ongoing bias in favor of the company that would skew their decision, and therefore, in the name of maintaining the impartiality of the court, should step aside from the case in question.

The problem in this case is that Kagan will claim that she has no vested interests, if she mentions it at all, but the emails CNSNews was able to obtain after repeated FOIA requests and an eventual lawsuit against Holder’s Department of Justice provide fairly convincing evidence to the contrary.  In an email exchange with Laurence Tribe, Kagan seems to have made plain her excitement at the impending passage of the “Patient Protection and Affordable Care Act”(Obama-care:)

“I hear they have the votes, Larry!! Simply amazing,”

Amazing indeed.  I considered it sickening, for the record.  As CNSNews further points out, this presents something of a problem for Kagan:

According to 28 USC 455, a Supreme Court justice must recuse from “any proceeding in which his impartiality might reasonably be questioned.” The law also says a justice must recuse anytime he has “expressed an opinion concerning the merits of the particular case in controversy” while he “served in governmental employment.”

This is why Supreme Court justices are vetted.  It’s also the reason that in their confirmation hearings, Senators try so hard to get them to state opinions, but in virtually all cases, the justices refuse to openly state their position on issues.  It should be plain to all that by the statement in email to Laurence Tribe, Kagan was expressing her affirmative excitement at the prospects of the passage of Obamacare.  This is also the reason that upon its first FOIA request, the DoJ simply didn’t respond.  They apparently hoped that the Freedom of Information Act requests would go away.  We’ve seen a good deal of this from the Department of Justice under Eric Holder.

In my view, this is a damning email, because Kagan seems to be clearly biased in favor of the law that will now come before the court upon which she now sits.  I think that the ethical standard established for the court demands that she recuse herself from this case, but I also know she is a doctrinaire leftist ideologue, so she will likely refuse to recuse. Leftists don’t believe the laws apply to them, and they are virtually always ready with a tortured rationalization as to why they should be exempt from these standards.  There can be no doubt Kagan should never sit in judgment in this case.

That said, she’s a liberal, which means she’s very much an “ends justify means” sort of person.  As obvious as the matter seems to be, don’t expect a recusal.  Leftist agenda trumps ethical concerns every time.

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