Will Justice Kagan recuse herself about Obamacare after “smoking gun” email?

From Catholic Vote comes this shocker… yes.. I’m shocked! shocked! to find duplicity in this party!

Efforts by the watchdog group Judicial Watch to demand that Justice Elena Kagan recuse herself when Obamacare is brought before the Supreme Court later this year resulted in the release of emails between Kagan (back when she was Solicitor General) and a top Department of Justice official which, unsurprisingly, confirm what pro-lifers have been saying all along about the phony agreement.

Namely, that the executive order signed by President Obama to give cover to Bart Stupak and his “pro-life” Democrats for them to support Obamacare was a joke: [And let us never… never forget the cover given to catholic Dems by the catholic Health Association and the Magisterium of Nuns.  It’s all about the cover]

Kagan, while serving as President Obama’s Solicitor General, exchanged emails with her then-colleagues in the Justice Department indicating her support for the Obamacare legislation when it was under consideration in Congress.

“I hear they have the votes, Larry!! Simply amazing,” Kagan wrote, in an email obtained by Judicial Watch, on the day Obamacare passed through Congress. Larry Tribe, a Harvard Law professor and Supreme Court attorney who served as “senior counselor for access to justice” in the Department of Justice (DOJ), replied to Kagan that the bill’s passage was “remarkable.”

“And with the Stupak group accepting the magic of what amounts to a signing statement on steroids!” Tribe added in delight, and in derision for the pro-life Democrats.

Here’s what Tribe means by a “signing statement on steroids” — he means the executive order was little more than a photo-op. Why? Because the president doesn’t write the law – Congress does.

In other words, Obama got Stupak and the last Democrat hold-outs to accept the “magic” (fake political theater) of voting for a bill while claiming they didn’t vote for it because the executive order changed it. But the executive order did no such thing, because Obamacare is the law now, not any executive order.


About Fr. John Zuhlsdorf

Fr. Z is the guy who runs this blog. o{]:¬)
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  1. Bryan Boyle says:

    I’m shocked! Shocked I say. Imagine that? Wow. Such a surprise.

    I’ll wager a month’s supply of Fr. Z’s choice (and he can tell me which flavor he prefers) of Mystic Monk coffee to be delivered to him that the FULL court will hear and decide this. [I’m shocked! Shocked to find that there is gambling going on here!] She will not recuse herself. She was put on the Court for a reason by the self-annointed One. She answers to no one on this earth and is accountable to no one, has a lifetime appointment to the court, and can joyfully ignore the public outcry.

    Of course, if she does…I’ll personally perform the Five First Saturday devotion in thanks to Our Lady of Fatima for the benefit of holy souls in Purgatory.

  2. disco says:

    I hate to be a wet blanket on this one but dont those emails suggest that she merely supported the bill’s passage? I don’t see how that alone would suggest that she should recuse herself. Now on the other hand if she had been the author of one or more provisions of the bill or performed a more substantive role in its passage (she may have I don’t know) or if she has financial interests which would be affected by the court’s action on this case then she should recuse herself. We don’t really see that here. You can’t make a pro choice justice recuse themselves on an abortion case either.

  3. ChronicSinner says:

    Unfortunately, Father Z, it’s not just the Magisterium of the Nuns or the CHA that have dirt, (and indeed blood) on their hands for fostering a political mileu that allows the party of the culture of death to thrive and implement their noxious legislation. I submit that the USCCB as a body also share some of the blame. Their abysmal voting document entitled “Faithful Citizenship”, published during the runup to the 2008 election was also used as cover by those squishy “Catholics” who needed very little if any convincing to pull the lever for Obama and those of his ilk.

    It really should be no surprise that roughly 56% of self professed “Catholics” in 2008 voted for the most pro-abortion candidate to ever come down the pike, particularly in light of teaching documents from BISHOPS such as “Faithful Citizenship”. This document, IMO, truly gave cover, since it conflated non-negotiable intrinsic evils such as abortion with “social justice” issues such as poverty and capital punishment. It completely ignored the profound moral distinctions that Church teaching draws among these issues, and gave those who were hell bent to vote for Obama, a wink and a nod to do so by giving the impression that, while yes abortion is a grave evil, it’s permissible to vote for a candidate such as Obama as long as their platform calls for community outreach. It would be quite interesting indeed, to see how individual bishops voted in 2008, wouldn’t it? In the end, ironically enough, Obama’s pastor of 22 years was spot on…the chickens are indeed coming home to roost.

  4. Bryan Boyle says:

    So…what flavor? :)

  5. Supertradmum says:

    She was a bad appointment from Day One. There is nothing honest about this administration, because all the individuals think about are themselves, little old narcissists that they are. Her interviews before she was appointed were abysmal. She does not, by the way, believe in Natural Law Philosophy. One more sign of the decay of this country is the lack of objectivity in the political realm.

  6. Theodore says:

    ACA litigation has a number of (admittedly) dated articles on Kagan recusing herself.


    And the blog is the to go place if you are following this matter:


    My take, this is the biggest Commerce Clause case since the New Deal. Wild horses could not drag her off the bench.

  7. brassplayer says:

    As long as we’re asking Kagan to recuse herself, shouldn’t we do the same with Scalia and Thomas? Why would an impartial judge be the featured guest at a dinner sponsored by the law firm that is arguing the case?

  8. Supertradmum says:

    From the article quoted above by brass player, who points out an interesting nuance:

    “It’s nothing new: The two justices have been attending Federalist Society events for years. And it’s nothing that runs afoul of ethics rules. In fact, justices are exempt from the Code of Conduct that governs the actions of lower federal judges.

    If they were, they arguably fell under code’s Canon 4C, which states, “A judge may attend fund-raising events of law-related and other organizations although the judge may not be a speaker, a guest of honor, or featured on the program of such an event.“

    Seems like there needs to be cleaning up on both sides of the political fence.

  9. BobP says:

    Stupak might have passed if it hadn’t been for newly elected Scott Brown of Massachusetts ready to cast his 41st vote against any health care bill coming out of the House. House had no choice but to take what had passed the Senate before Scott Brown or nothing at all.

  10. Theodore says:

    28 USC sec. 455 b(3) provides for recusal if:

    (3) Where he 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;

    Still, I’m holding to my original position.

  11. wmeyer says:

    1. It has been a very long time since the Supreme Court was a truly impartial body, if indeed it ever was. In the 20th century, the Court got a taste of legislating from the bench, and per Lord Acton’s famous maxim, the power corrupted them. Since then, it has been a slide down the slippery slope.

    2. Kagan will not recuse herself. To believe she would is to be delusional.

    3. To hope for the Court to overturn Obamacare is akin to hoping they will overturn Roe v. Wade.

    Pray, brethren, but let us not delude ourselves; we will need to keep our wits about us in the coming collapse.

  12. ContraMundum says:

    Apparently, none of us thinks she will recuse herself.

    That said, I think it is helpful to distinguish the parts of this bill that may be acceptable from those that are not, and to distinguish the different reasons for finding parts of it unacceptable.

    To the extent that it forces taxpayers to support abortion, contraception, or sterilization, now or in the future, it is an evil bill. Likewise to the extent that it forces doctors, nurses, or pharmacists to participate in abortions or provide these “services”. As Catholic, we really have no choice about opposing such provisions.

    When it comes to having the government basically take over the whole health care system, it’s not quite so simply evil, just a really, really bad idea. The Canadian health care system may have the greatest PR department in the world, but I’ve got a friend who lives up there. Her mom suspected she had cancer, but the system kept telling her no, of course not. She finally went to the Mayo clinic at her own expense, and they confirmed that she not only had cancer, but only a few weeks to live, as proved to be the case. Or, if you prefer, consider our own VA hospital system; no one goes there by choice, but by necessity. Because this is more of a matter of debatable prudence, I’d say we should oppose it not so much as Catholics, but as patriotic Americans.

    On the other hand, our current system is badly broken. It’s great that we have (potentially, or maybe theoretically) access to all kinds of technology that were not available in the 1950’s, but that technology comes with a price. Somehow we need to be able to isolate the “1950’s” medicine, which is adequate for most medical problems, from the expenses generated by specialists, advanced technology, and new drugs. Maybe King Solomon could have figured out a way to do this, but none of our current leaders have.

  13. Phillip says:

    I’m going to withhold my opinion about Obamacare (mainly because I don’t know the intricacies of it well enough to justify advancing an opinion), but I don’t see why a Supreme Court Justice should recuse herself just because she apparently like(d) the law in question. If the case were on its way to the Supreme Court and Justice Kagan were preparing the case on the government’s behalf while she was still Solicitor General, she’d obviously have a duty to recuse herself. This seems like making a huge deal out of nothing. She has an opinion about a law. She wanted the law passed. Lots of Americans – including Supreme Court Justices – have opinions about major laws that are passed. The only thing that sets this apart, as far as I can tell, is that her opinion is already known – unless she has a change of heart about the constitutionality of it (stranger things have happened). Being an impartial judge does not necessarily require being a neutral observer of the legislative process.

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