Elena Kagan's Emails

Now a Supreme Court Justice, Elena Kagan has yet to recuse herself from the ObamaCare cases that will eventually appear on the Supreme Court docket. Emails between Elena Kagan and members of the Obama Administration reveal that she was more involved with Obamacare law than was previously disclosed. Emails show that Kagan was involved with forming the legal defense of the Affordable Care Act (Obamacare) in her role as solicitor general. The Obama administration appointed Kagan. Said Tom Fitton, Judicial Watch president, “It was well known this appointment [as Solicitor General and to the Supreme Court] was key in terms of providing a defense of the health-care law.”

Now we learn that on Thursday, October 13, 2011, a U.S. District judge appointed by Bill Clinton, Judge Ellen Segal Huvelle, ruled that the Justice Department (DOJ) does not have to release emails [then] Solicitor General (SG) Elena Kagan sent from her DOJ account to the White House in which she discussed her recusal decisions as solicitor general because they were “used for a purely personal objective.” Emails SG Kagan sent or received concerning her nomination were not ‘created by the OSG’ but were sent or received by SG Kagan in her personal capacity as a nominee to the Supreme Court rather as opposed to her official capacity as Solicitor General. Judge Huvelle agreed with DOJ that Kagan’s emails to the White House “about recusal decisions as Solicitor General,” as DOJ had described the emails, were indeed personal and not governmental. Judge Huvelle wrote in an opinion, “SG Kagan’s correspondence was not relied upon by the OSG in carrying out its business, but rather was used for a purely personal objective … As such, the relevant factors compel the conclusion that the withheld documents were personal, not attributable to the agency, and therefore were not ‘agency records’.” At issue is whether Kagan must recuse herself as a Supreme Court Justice when the cases challenging the constitutionality of Obamacare reach the court.

Justice Kagan was the Obama administration’s solicitor general when Obamacare was enacted, and when Virginia and Florida filed lawsuits against that health-care plan in federal court. Under federal law, 28 U.S.C. 455, any “justice, judge or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might be reasonably questioned.”

Do we see/smell a conflict of interests on Kagan’s part?

But that’s just my opinion.