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.
(Crossposted at Sister Toldjah)