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Supreme Court Showdown: Justice Kagan Avoids Obamacare Recusal – OpEd


Monday’s long-anticipated showdown between proponents and opponents of the controversial Patient Protection and Affordable Care Act, a/k/a Obamacare, is being viewed by many observers as just another example of liberal-left bias within the ranks of the U.S. news industry. Some conservatives are accusing members of the news media of aiding in the cover up of a suspected case of judicial impropriety by the Obama Administration.


“How else to explain the almost total lack of interest in a Supreme Court judge’s past work on behalf of the Obama Administration that may have included defending Obamacare within the federal court system?” asks attorney and political consultant Mike Baker.

For example, the largest government watchdog group in the nation on Thursday sent a letter asking Supreme Court Associate Justice Elena Kagan to address the facts surrounding her tenure as U.S. Solicitor General in the Obama Administration and the enactment and subsequent legal defense of Obamacare (Patient Protection and Affordable Care Act), as well as “to provide an articulation of her reasoning behind any decision regarding recusal (to remove oneself from participation in a court case to avoid a conflict of interest).”

Emails previously obtained by Judicial Watch suggest that, during Justice Kagan’s tenure as Solicitor General, the Office of the Solicitor General had been more involved in the legal defense of the PPACA than had previously been disclosed, according to JW’s director of public affairs, Jill Farrell.

Late last year, as reported by Fox News, another set of records was produced that included an email showing what appeared to be then-Solicitor General Kagan’s excitement and support for the passage of the PPACA, which she neglected to mention during her confirmation hearings.

In the letter to Justice Kagan, Judicial Watch president Tom Fitton notes, “The failure of the Justice department to produce requested records in a timely manner, the dribbling out of requested records over time, the redaction and withholding of other records, and the refusal to respond to requests for records and information from several members of Congress have contributed to the substantial impression that additional details about your tenure as Solicitor General and the enactment and subsequent legal defense of the PPACA are being withheld from the American people. However, [as] the Court ultimately rules on the various legal challenges to the PPACA, it would be extraordinarily unfortunate if the Court’s decision were overshadowed by controversy over your participation in the matter. It would leave a cloud hanging over the Court’s decision and could undermine public confidence in the impartiality and integrity of the Court as an institution.”


The letter further states, “Judicial Watch is not calling on you to recuse yourself from the PPACA litigation at this time, just as Judicial Watch did not call on Justice Scalia to recuse himself from the litigation involving the National Energy Policy Development Group (‘NEPDG’) – to which Judicial Watch was a party – in 2004. When a controversy arose during the course of the NEPDG litigation over whether Justice Scalia should recuse himself from that matter, Justice Scalia issued an opinion stating: ‘The decision whether a judge’s impartiality can ‘reasonably be questioned’ is to be made in light of the facts as they existed, and not as they were surmised or reported.” Justice Scalia then provided a comprehensive recitation of the facts ‘as they existed,’ not as they were ‘surmised or reported,’ and an articulation of the reasoning behind his decision not to recuse himself.”

Fitton further notes in his letter to Kagan, “During your confirmation process, you wrote that you would ‘consider carefully the recusal practices of current and past Justices’ as well as consult with your colleagues if questions about recusal in particular cases arose. Judicial Watch believes that it would be of substantial benefit to the Court’s consideration of the legal challenges to the PPACA if, like Justice Scalia in the NEPDG matter, you were to address the facts surrounding your tenure as Solicitor General and the enactment and subsequent legal defense of the PPACA as they ‘existed,’ not as they are being ‘surmised or reported,’ as well as provide an articulation of your reasoning behind any decision regarding recusal.”

Justice Kagan has said that she was not “substantially” involved in the DOJ discussions regarding Obamacare’s constitutional or litigation issues. The White House, despite repeated inquiries, has refused to confirm to Judicial Watch that Justice Kagan was “walled off” from Obamacare defense discussions while at the Department of Justice (DOJ).

The Judicial Watch letter also references the lack of cooperation by the DOJ in responding to Freedom of Information Act (FOIA) requests previously submitted by Judicial Watch for records pertaining to Justice Kagan and the PPACA. (The Solicitor General and staff are part of the Justice Department.)

On February 21, 2012, Judicial Watch filed another FOIA lawsuit against the DOJ, seeking access to calendars, schedules, and phone logs for Kagan and her deputies inside the Solicitor General’s office.

“We hope that Justice Kagan will give serious consideration to addressing this recusal controversy, so as to provide greater transparency and increase public confidence in the impartiality and integrity of the Supreme Court,” stated Tom Fitton.

Special thanks to Judicial Watch director of public affairs Jill Farrell for her continued help and support.

Jim Kouri

Jim Kouri, CPP, formerly Fifth Vice-President, is currently a Board Member of the National Association of Chiefs of Police, an editor for, and he's a columnist for In addition, he's a blogger for the Cheyenne, Wyoming Fox News Radio affiliate KGAB ( Kouri also serves as political advisor for Emmy and Golden Globe winning actor Michael Moriarty.

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