Documents Show Elena Kagan’s Conflict of Interest on ObamaCare

Documents Show Elena Kagan’s Conflict of Interest on
ObamaCare

May 18th, 2011

Ben Johnson, The White House Watch

Documents uncovered by a legal watchdog group prove Supreme Court Justice
Elena Kagan was involved in the Obama administration’s legal defense of the
Patient Protection and Affordable Care Act, otherwise known as “ObamaCare.”

Judicial Watch has released
a number of administration communiqués that show Kagan, who was then Solicitor
General, presided over the president’s response to lawsuits asserting the
government health care bill is unconstitutional.

On January 8, 2010, Brian Hauck, Senior Counsel to Associate Attorney General
Thomas Perrelli, wrote to Kagan’s deputy, Neal Katyal, asking for the office’s
assistance in “how to defend against the inevitable challenges to the health
care proposals that are pending.” Three minutes later, Katyal replied,
“Absolutely right on. Let’s crush them. I’ll speak with Elena and designate
someone.” After Katyal volunteered, Kagan responded, “You
should do it.”
[1]

A few hours later, Katyal updated Hauck, writing, “Brian, Elena would
definitely like OSG [the Office of Solicitor General] to be involved in this set
of issues.” Katyal added,”I will handle this myself, along with an Assistant
from my office, (Name RedactedBJ), and we
will bring Elena in as needed
.”(Emphasis added.)

The Justice Department continues to withhold a series of e-mails that would
disclose Kagan’s exact role in the negotiations. However, it has turned over the
Vaughn
index
, which describes the items being stonewalled in general terms. These
include….

Read
more
.

Morning Bell: The Limitless Power of the Obama-Kagan Congress

Morning Bell: The Limitless Power of the Obama-Kagan Congress

Posted By Conn Carroll On July 1, 2010 @ 9:23 am In Rule of Law | 8 Comments

This Sunday, our nation will celebrate Independence Day, which commemorates the Continental Congress’ adoption of the Declaration of Independence on July 4, 1776. Thomas Jefferson’s Declaration preamble reads: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” The fact that we as a nation came together every year to celebrate this document might lead many Americans to believe that a Supreme Court Justice should take the Declaration of Independence into account when they are interpreting the Constitution. Elena Kagan is not one of those Americans. Under questioning from Sen. Tom Coburn (R-OK) yesterday, Kagan admitted [1]: “To be honest with you, I don’t have a view of what are natural rights independent of the Constitution.”

And Kagan’s disturbing indifference to the existence of natural rights is just one of the many frightening revelations her confirmation hearing has produced. On Tuesday, Sen. Coburn pressed [2] Kagan about the limits the Constitution places on Congress’ power to control what Americans do:

Coburn: If I wanted to sponsor a bill and it said Americans, you have to eat three vegetables and three fruits every day and I got it through Congress and that’s now the law of the land, got to do it, does that violate the Commerce Clause?

Kagan: Sounds like a dumb law

Coburn: Yeah, but I got one that’s real similar to it that I think is equally dumb. I’m not going to mention which it is.

Kagan: But I think that the question of whether it’s a dumb law is different from whether the question of whether it’s constitutional and I think that courts would be wrong to strike down laws that they think are senseless just because they’re senseless.

The law Coburn was referring to, of course, was President Barack Obama’s signature legislative accomplishment: the Obamacare provision that forces all Americans to buy health insurance. But Jefferson and the other Constitution framers designed the document to protect our “unalienable Rights” by limiting the power of Congress. They designed an ingenious system of checks and balances that divides state and federal authority in the hope of preventing any one government from exerting too much control over a free people. Specifically [3], Article I allocates to Congress “[a]ll legislative powers herein granted,” and section 8 of Article I (referred to by Sen. Coburn above as the Commerce Clause), grants Congress the authority “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.” The Supreme Court has always understood that, taken together, these clauses put some legislative powers beyond Congress’ reach [3].

But Kagan has now testified that not only does she find the Founders’ concept of “unalienable Rights” irrelevant to Constitutional interpretation, but she also declined to say if the Constitution prevents Congress from telling Americans what to eat.  Her evasive non-response to Coburn’s Commerce Clause inquiry shows that she would indeed be a rubber-stamp for almost any part of the Obama agenda that Congress enacts [4]. So if the Obama administration convinced Congress (and this is a total hypothetical) that the survival of a single car company, let’s say Chrysler, was absolutely necessary for the survival of the nation’s economy, and Congress then passed a law forcing all Americans to buy a Chrysler car, Kagan would find such a law, while perhaps “dumb,” perfectly constitutional. Jefferson must be rolling in his grave.

The leftist members of the Senate Judiciary Committee know that the Obamacare individual mandate is extremely vulnerable to being struck down by the Supreme Court. That is why they have spent so much of the hearing trying to redefine what “judicial activism” is [5]. As Heritage Deputy Director of the Center for Legal and Judicial Studies Robert Alt will testify today, the Court is not committing “judicial activism” every time it finds that a law violates the Constitution. Judicial activism is not a function of outcomes, but one of interpretation [6]. Instead, it occurs when a judge applies his or her own policy preferences to uphold, or strike down, a statute or other government action which is clearly forbidden by the Constitution.

Kagan came to the committee with one of the thinnest records of any Supreme Court nominee in recent history. What little has been learned about her views so far has been highly disturbing. Nothing in her testimony has demonstrated she has either the respect for our nation’s founding documents or the independence from this White House to apply the law as it is written, and dispense justice without regard to the parties before her.

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Will Obama Summon the Solicitor General?

Will Obama Summon the Solicitor General?

Peter Landesman

In her confirmation hearing Tuesday, Elena Kagan said words that actually mean that President Obama was incorrect when he stated during his State of the Union speech:
“The Supreme Court reversed a century of law to open the floodgates for special interests — including foreign companies — to spend without limit in our elections. Well I don’t think American elections should be bankrolled by America’s most powerful interests, and worse, by foreign entities.”
Elena Kagan, watch out. President Obama does not approve of people who criticize him.
She could have avoided commenting on the speech. But, as a great teacher, she had to be truthful.
Peter Landesman (mathmaze@yahoo.com) is the author of the 3D-maze book Spacemazes, with which children can have fun while learning mathematics.

Elena Kagan Qualifications (the cartoon)

Kagan may have to sit out key cases for Obama agenda

Kagan may have to sit out key cases for Obama agenda

May 12th, 2010

By JULIE MASON, Washington Examiner

 

conflicts of interest could block her from ruling on cases dealing with Obama

President Obama’s nomination of Solicitor General Elena Kagan to the Supreme Court assumes that she will have to step aside on numerous cases. But that concern that was trumped by what Obama called her “skill as a consensus builder.”

For Obama, installing Kagan on the high court would mean more than adding another like-minded constitutional scholar to the mix. Ideally, Kagan would bring outreach skills the more liberal members of the court have been lacking.

“She has a long record as a consensus builder and is the kind of person who can bridge the 5-4 splits that have become so routine on this court,” said Sen. Chuck Schumer, a New York Democrat and member of the Senate Judiciary Committee.

Kagan’s skill set appeals to Obama, who wants to expand on his first-year Supreme Court nomination of Justice Sonia Sotomayor.
While Sotomayor is a reliable liberal vote on the court and the first Latina to serve, she functions primarily as a counterpoint to the court’s conservatives. Obama perceives Kagan as a justice with a broader role on the court.

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Would someone please list Kagan’s qualifications?

Would someone please list Kagan’s qualifications?

J.C. Arenas

The “meat” of Elena Kagan’s resume can be found during her tenure as Dean of Harvard Law, but the more we chew on what this woman has actually done, the more we should realize it lacks flavor.

The Wall Street Journal reports:

But the case for Ms. Kagan as the primary healer on the once-divided campus is sometimes overstated. Much of the work to defuse the bitter atmosphere, which included ideologically driven standoffs over whom to hire, took place under Ms. Kagan’s predecessor, Robert Clark, dean for 14 years. He calmed tensions and expanded the faculty.

Those trends accelerated under Ms. Kagan’s leadership. Charles Fried, solicitor general under President Ronald Reagan and a Harvard Law faculty member since 1961, said Mr. Clark “was trying, but it was a struggle every time.” Ms. Kagan, he said, “was just incredibly politically skillful” at recruitment and at selling faculty on her choices.

He also credits her with arranging a faculty lounge so it offered free lunch and large tables, where faculty could sit and get to know one another. “It was an absolute stroke of genius,” Mr. Fried said.

(snip)

As a Harvard faculty member, Ms. Kagan impressed then-Harvard President Lawrence Summers with her skill in handling a touchy issue: whether the law school should move to an alternate campus. The faculty had been fiercely opposed, but she helped develop a negotiating position in dealing with the rest of the university that spelled out under what conditions the law school would consider moving.

(snip)

Beyond the political atmosphere, Ms. Kagan is credited with improving student life through upgrades to the physical campus, such as a revamped student center, an upgraded gym and an ice-skating rink that doubled as a volleyball court. And she offered small things, like free coffee outside classrooms and free tampons in the women’s restrooms.

Obama’s first Supreme Court appointment was Sonia Sotomayor, the Bronx-bred daughter of Puerto Rican parents, who supposedly was a valedictorian student with a deficiency in English and become an Ivy-League educated jurist credited with saving Major League Baseball.

Now we have Elena Kagan, the granddaughter of immigrants, who as Dean of Harvard Law, introduced the concepts of civil debate, a faculty lounge, free coffee and tampons.

If this woman has some legitimate qualifications to serve as a Supreme Court Justice, I hope they are presented soon; otherwise I’m going to have a win a year supply of Laffy Taffy to find a bigger joke. 

J.C. Arenas is a frequent contributor to American Thinker and welcomes your comments at jcarenas.com

Kagan spit in the eye of America’s Armed Forces

Kagan spit in the eye of America’s Armed Forces

May 10th, 2010

Curt Levey, The Committee for Justice

Realizing that the retirement of Justice Stevens threatened to leave the Supreme Court without a military veteran, the Committee for Justice and others urged President Obama to replace Stevens with someone who has “the military experience necessary to understand and evaluate the government’s national security arguments.”  Most importantly, Justice Stevens himself talked recently about the importance of having “at least one person on the Court who had military experience.”  It was disappointing enough when the President showed no interest in this important concern.  But in selecting Elena Kagan, Obama has chosen to replace the Court’s last veteran with a nominee who essentially spit in the eye of America’s armed forces. Kagan banished military recruiters from the Harvard Law School campus during a time of war, after pronouncing our armed forces guilty of “a moral injustice of the first order” for carrying out the Clinton Administration’s “don’t ask, don’t tell” policy.

Millions of Americans will be outraged when they learn that Obama has picked a Supreme Court nominee with a demonstrated hostility to the very armed forces that make our freedom and constitutional rights possible. But that’s just one reason why President Obama is in for a more difficult confirmation fight than he bargained for when he chose Kagan.

Kagan starts out with more than thirty votes against her confirmation to the High Court.  Only seven Republican senators voted to confirm her as Solicitor General 14 months ago.  Now she faces the less deferential standard applied to lifetime Supreme Court appointments, an emboldened Republican Party, nervous red state Democratic senators, and a public concerned about the nation’s leftward drift.

Added to that mix will be scrutiny of Kagan’s out-of-the-mainstream views on gay rights, which are sure to generate controversy and vigorous opposition. Kagan’s argument that “don’t ask, don’t tell” justifies kicking the military off campus was unanimously rejected by the Supreme Court in 2006, placing her to the left of even the Court’s most liberal Justices on the issue of gay rights and the First Amendment.  Moreover, Kagan allowed her obviously strong feelings about gay rights to interfere with her duties as Solicitor General.  At least twice during the last year, in cases involving challenges to the Defense of Marriage Act and the “don’t ask, don’t tell policy,” Kagan failed to vigorously defend federal law despite her institutional obligation and promise to senators to do so.

At a time when the number one goal of the purveyors of judicial activism is the discovery of a right to gay marriage in the U.S. Constitution, the American people should be worried about this nominee’s views on gay rights.  However, in light of speculation and White House denials concerning Kagan’s sexual orientation, let me be clear that it is Kagan’s constitutional orientation and not her sexual orientation that is a legitimate cause for concern.

 

President Obama’s selection of Kagan is particularly disappointing given that the potential nominees he considered included at least two highly respected judges with a proven track record of moderation – Merrick Garland and Leah Ward Sears.   Conservatives made it clear that they would have a hard time opposing either nominee. While no nominee would silence all the President’s critics, Garland or Sears would have been widely seen as a bipartisan, non-ideological choice and either would likely have been confirmed by an overwhelming margin in the Senate.  Instead, the President chose to pick a fight with Republicans.

Perhaps picking a fight is part of the President’s reported strategy of using the confirmation debate to portray Democrats and the judges they chose as protectors of the “little guy.”  If so, Elena Kagan is a strange choice because her background is far more elitist than humble.  In addition to heading Harvard Law School, one of the most elite schools in the world, and serving as a Clinton Administration politico, Kagan was a paid member of a Goldman Sachs board during the height of Wall Street’s excesses.

 

It’s not clear how the White House can portray Elena Kagan as a woman of the people, but it is apparent that the Administration plans to portray Kagan as a moderate by calling the press’s attention to the concerns of some on the Left that she is not a genuine liberal.  It is hard to know if concerns expressed on the Left are borne of disingenuousness or just a propensity to worry.  However, the bottom line is that it’s downright silly to imagine that a fervent supporter of gay rights who thrived on the Harvard Law School faculty and in the Clinton Administration and embraces Justice Thurgood Marshall’s approach to judging will turn out to be a closet conservative once on the High Court.

Specifically, Kagan described Justice Marshall’s view of the judiciary – that its primary mission is to “show a special solicitude for the despised and disadvantaged” and “to safeguard the interests of people who had no other champion” (Kagan’s words) – as “a thing of glory.”  The Kagan / Marshall judicial philosophy sounds an awful lot like President Obama’s promise to appoint judges with “the empathy to recognize what it’s like to be a young teenage mom [or] poor, or African-American, or gay, or disabled, or old,” a view of judging that even the very liberal Sonia Sotomayor rejected last summer.

Particularly because the American people are concerned like never before about unrestrained federal power, Elena Kagan’s view of a judge’s role is a real threat to her confirmation, as Judiciary Committee Ranking member Jeff Sessions has noted.  After all, a Supreme Court that is free to ignore the law in order to “show a special solicitude” for the interests of certain groups or to discover new rights in the Constitution – such as a right to gay marriage – is an insitution whose power is essentially limitless.

For example, when the constitutionality of ObamaCare comes before the Supreme Court, as is inevitable, will a Justice Kagan decide that “special solicitude” for the disadvantaged is served by okaying Obama’s federalization of health care or, instead, by protecting the rights of those who do not want to be coerced into purchasing health insurance? In other words, it is hard to see how the Kagan / Marshall standard puts any limits on a Justice’s indulgence of their personal policy preferences.

Kagan’s troubling statements about judicial philosophy will take on added significance given her thin record, which includes a puzzling dearth of academic scholarship after more than a decade in academia.  Her thin record also makes it vital that the White House release, in a timely manner, the documents Kagan produced while serving as President Clinton’s associate counsel and domestic policy advisor.

Finally, given her thin record, Kagan owes it to the American people to engage in an open and honest debate with senators about her judicial philosophy and other controversial views.  One hopes that Kagan agrees, given her assertion that “when the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce.”

Elena Kagan Resume (the cartoon)

Kagan on Obama circa 2005

Kagan on Obama circa 2005

Greg Halvorson

By now, anyone with a working knowledge of narcissism recognizes the pathological condition of the president.  Even liberals concede that the man who sends thrills up Chris Mathews’ leg is self-absorbed. 

It therefore makes sense that Elena Kagan, his Solicitor General, is the SCOTUS nominee.  In 2005, at a Harvard luncheon, Ms. Kagan waxed eloquent on Obama.  She’d had the “privilege” of attending the DNC National Convention the year before and had experienced rapture:

He opened his mouth, said a few words, and the place was mesmerized.  You could hear a pin drop.  In part, that is because of all the rock star qualities he has: the eloquence, the magnetism, the great looks, the brilliance.  When he opens his mouth, you know what you’re getting. 

Kagan went on to call Obama a “hero,” concluding that he is “truly one of the great public servants of our time,” and gives many “hope” in the future of our country. 

Wow.  To label a man who voted “present” in the Illinois assembly and was a do-nothing Senator “great” is remarkable.  If Obama is “great,” may I ask, What is bad?  True, when he opens his mouth, we know what we’re getting, but based on the above, we know what we’re getting when Kagan opens hers.  A kool aid progressive who defines “hero” oddly, who believes rock stars “eloquent,” and who’s dipped her toe in the pool of Narcissus to admire Obama admiring himself. 

 

Greg Halvorson is the founder of Soldiers Without Boots, and hosts The Soldier One Radio Hour on Blog Talk Radio.

Morning Bell: Former Attorney General Ed Meese on Supreme Court Nominee Elena Kagan

Morning Bell: Former Attorney General Ed Meese on Supreme Court Nominee Elena Kagan

Posted By Conn Carroll On May 10, 2010 @ 9:37 am In Rule of Law | 35 Comments

[1]

According to multiple [2] sources [3], at 10 am today President Barack Obama will announce his decision to name Solicitor General Elena Kagan to the Supreme Court. Kagan, who served as the Dean of Harvard Law School from 2003 to 2009, would be the first justice without judicial experience in almost 40 years. But this does not mean she is in any way a stranger to the Senate confirmation process. In fact, in 1995 she authored an article [4] on judicial confirmations for the University of Chicago Law Review where she wrote:

The Bork hearings presented to the public a serious discussion of the meaning of the Constitution, the role of the Court, and the views of the nominee; that discussion at once educated the public and allowed it to determine whether the nominee would move the Court in the proper direction. Subsequent hearings have presented to the public a vapid and hollow charade, in which repetition of platitudes has replaced discussion of viewpoints and personal anecdotes have supplanted legal analysis. Such hearings serve little educative function, except perhaps to reinforce lessons of cynicism that citizens often glean from government. … [T]he fundamental lesson of the Bork hearings [is] the essential rightness—the legitimacy and the desirability—of exploring a Supreme Court nominee’s set of constitutional views and commitments.

On this point, we find agreement with Ms. Kagan. As we documented first with the Justice Sonia Sotomayor confirmation hearings [5], and again with the University of California at Berkeley law school Associate Dean Goodwin Liu hearings [6], President Obama’s leftist legal nominees have been completely unwilling and unable to defend their liberal legal views from Senate questioning. Instead they have retreated or renounced their past writings in an all too familiar spectacle that Kagan has said: “takes on an air of vacuity and farce.” We sincerely hope that Kagan continues to reject this model and that the U.S. Senate fulfills its proper advice and consent [7] role. Responding to the news of Kagan’s nomination, Former Attorney General Ed Meese released the following statement:

First and foremost, any nominee to a lifetime appointment to the United States Supreme Court must demonstrate a thorough fidelity to apply the Constitution as it was written, rather than as they would like to re-write it. Given Solicitor General Kagan’s complete lack of judicial experience, and, for that matter, very limited litigation experience, Senators must not be rushed in their deliberative process. Because they have no prior judicial opinions to look to, Senators must conduct a more searching inquiry to determine if Kagan will decide cases based upon what is required by the Constitution as it is actually written, or whether she will rule based upon her own policy preferences.

Though Ms. Kagan has not written extensively on the role of a judge, the little she has written is troubling. In a law review article, she expressed agreement with the idea that the Court primarily exists to look out for the “despised and disadvantaged.” The problem with this view—which sounds remarkably similar to President Obama’s frequent appeals to judges ruling on grounds other than law–is that it allows judges to favor whichever particular client they view as “despised and disadvantaged.” The judiciary is not to favor any one particular group, but to secure justice equally for all through impartial application of the Constitution and laws. Senators should vigorously question Ms. Kagan about such statements to determine whether she is truly committed to the rule of law. Nothing less should be expected from anyone appointed to a life-tenured position as one of the final arbiters of justice in our country.

The American people agree. According to a national post-election 2008 survey of 800 actual voters, the polling company, inc. [8] found that 70% of respondents preferred that judges not base their decisions on personal views and feelings. And according to the latest Quinnipiac University Poll [9] by a 16 point margin more Americans believe the Supreme Court should only consider the original intentions of the authors of the Constitution instead of considering changing times and current realities. And finally, the latest Gallup poll [10] shows that more Americans “would prefer a new Supreme Court justice who makes the court more conservative (42%) over one who would make the Court more liberal (27%).” Let’s hope the Senate gives the American people what they want.

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