A direct challenge has been renewed to members of the U.S. Supreme Court to see that Elena Kagan does not participate in the arguments over Obamacare, since she was working in the White House when the plan by Barack Obama was being developed.
When Kagan’s participation initially was raised by attorney Larry Klayman, the justices said the issue would not be part of the oral arguments over Obamacare, Obama’s effective nationalization of the American health care industry.
Klayman, the founder of Judicial Watch, now directs Freedom Watch USA. He has been a thorn in the side of presidents in court, including Bill Clinton, inspired a “West Wing” character and was the first lawyer to obtain a court ruling that a president committed a crime.
In a motion to reconsider filed today, Klayman said the issue of judicial integrity is even more important that the substance of the Obamacare dispute itself.
“The ‘greater’ issue is the integrity of the Supreme Court itself and whether or not it will adhere to and respect centuries old rules of judicial ethics, which require a judge to recuse herself when she has a conflict of interest and when to continue on the case would create even the appearance of partiality,” Klayman said in the motion.
He wrote that in addition to Kagan’s “conflict of interest” because of her work in the White House, allegedly on behalf of Obamacare, she also reportedly advocated for Obamacare in another case.
“This act constitutes not only a conflict of interest, but creates more than the appearance of partiality, for which she must recuse herself or be disqualified by the court,” he wrote.
“If the Supreme Court does not adhere to accepted rules of judicial ethics in this case, and others, it will lose credibility as the ‘People’s Supreme Court,’ and indeed its ultimate decision herein will be forever held illegitimate and tainted by judicial misconduct. This is why the issue of Justice Kagan’s recusal or disqualification is even more important than the underlying issues of this Obamacare case itself. It will have a lasting effect on the integrity of the Supreme Court and how Americans view their court,” he said.
He noted that already in the United States, “with the rise of citizens’ movements like Occupy Wall Street and the Tea Party, Americans are already feeling disenfranchised from judicial and other government institutions, such that they are resorting to civil disobedience and if that does not work perhaps even revolution if things do not change.”
The challenges to Obamacare center on several issues, primarily the determination by Congress that it can order, under a constitutional provision for regulating interstate commerce, every person in American to purchase health insurance.
Opponents say the requirement is beyond what the Constitution allows.
Other opponents also say Obamacare’s demands on Christian institutions to pay for various abortion-related services violates the First Amendment.
But regarding Kagan’s participation, Klayman said the justices need to squelch even the appearance of untoward influence on the court.
“In 1776, the American people declared independence and later successfully waged revolution because the sovereign would not fully hear their concerns and grievances,” he said. “To borrow from Founding Father and later President John Adams, the Supreme Court must respectfully give the American people the voice they risked their sacred honor, fortunes and lives to realize in a ‘free nation made of laws, not men.’”
Klayman, known for tackling corruption in the nation’s capital, recently was awarded a default judgment in a case brought against Iran President Mahmoud Ahmadinejad on behalf of victims of his government’s torture campaign. Damages have yet to be established, but estimates are it could surpass the hundreds of millions.
Kagan has been facing criticism for her apparent decision to participate in the Obamacare case, which is to be argued in coming weeks, because she served Obama as solicitor general when the law was being developed. Emails indicate she was rooting for it, and she may even have strategized on how to defend it in court.
Klayman earlier cited statements in emails that reveal “Kagan’s personal bias in favor of the act.”
Among the evidence cited is an email from March 21, 2010, when Kagan, “then senior counselor for access to Justice Laurence Tribe, wrote, ‘I hear they have votes Larry!! Simply amazing . . . ‘ Tribe then responded, ‘So healthcare is basically done! Remarkable.’”
Additionally, on March 16, 2010, there was an email from Kagan to David Barron, asking if he had seen a Wall Street Journal article on the issue.
And Deputy Solicitor General Neal Katyal told Kagan in a 2009 email, “We just got [Olympia] Snowe on health care.”
Klayman wrote, “Without a neutral, unbiased Supreme Court, there simply is no rule of law and any decision concerning the act will be seen as illegitimate.”
He noted that Chief Justice John Roberts, in his annual report on the court, said the justices “need not follow the recusal and disqualification ethics rules that pertain to other judges.”
“Incredibly, and to add insult to injury, he added that ‘(t)he Supreme Court does not sit in judgment of one of its own members.’ This admission, among others in the report, says it all and ironically underscores why recusal or disqualification of Justice Kagan is necessary to preserve the integrity of the Supreme Court for the citizens of the United States,” Klayman said.
“The court does not belong to either Chief Justice Roberts or any other justice; it belongs to ‘We the People.’ And, if the justices cannot adhere to the rule of law, which includes judicial ethics, then the court must be stripped clean of this lawlessness by removing and prosecuting, through whatever legal means are available, those justices who refuse and fail to play by the same rules that they hold citizens and others accountable for.”
WND previously reported a former federal appeals court clerk has confirmed Kagan’s advocacy for an Obama-style health care policy dates back to the Clinton administration.
