Did Elena Kagan Lie?

On June 28, 2010, Elena Kagan’s Supreme Court Confirmation hearings started. During that hearing she was given thirteen questions to which she responded in writing. This post addresses only two of the questions and her responses:

1. Had she ever been asked her opinion about the merits or underlying legal issues in Florida’s lawsuit against Obamacare.
2. Had she ever been asked her opinion regarding any other legal issues that may arise from Pub. L. No. 111-148? – aka Obamacare.

To both questions she answered, “No.” So let’s examine some circumstances, and some e-mails that have recently surfaced, to see if she was truthful in her responses.

Regarding the first question, on March 23, 2010, seven weeks before Obama nominated Kagan to the Supreme Court, he signed his health-care reform law. When Obama signed the law, Kagan was serving as the US Solicitor General. Her job as solicitor general was to defend the administration’s position in federal court cases. Kagan was Obama’s solicitor general at a time when Obamacare was being constitutionally challenged in the federal court system. Further, 28 U.S.C. § 455, section (b), subsection (3), clearly states:

(b) He shall also disqualify himself in the following circumstances: (3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy;

Did she lie concerning the Florida challenge to Obamacare? No e-mails or witness testimony can be found, so only circumstantial evidence exists. But given the duties of solicitor general and the time line here, it’s hard to believe that she did not offer her opinion.

Regarding the second question, two months before Kagan told the Judiciary Committee she had never been asked her opinion regarding any legal issue that might arise from Obamacare, her own top deputy sent her a memo, dated May 13, 2010, telling her that she had “substantially participated” in her office’s handling of Golden Gate Restaurant Association v. San Francisco. Then on May 28, 2010, Kagan’s office submitted a 26-page brief to the Supreme Court. The brief cited Patient Protection Affordability Care Act (Obamacare) by name 12 times and referred to it more generally as “the federal legislation” or “the new federal legislation” an additional 6 times. One passage on page 14 and 15 of the brief illustrates the argument, made by Kagan’s office, that the Golden Gate case and PPACA were inseparably intertwined.

Here is the “smoking gun.” On May 12, 2010, Edwin Kneedler, assistant solicitor general, sent an e-mail (redacted here) to Neal Katyal, citing Kagan’s involvement (?) in the Golden Gate case. This e-mail was sent before the afore mentioned memo or brief. Again, no e-mails with Kagan’s name on it or her involvement surfaced. But was it redacted? Only the Department of Justice knows.

BTW, she was confirmed to the Supreme Court on August 5, 2010.

So if she is a liar (and, because of lying, is a political hack), how can we believe ANYTHING she says or ANY decision in which she participates?

But that’s just my opinion.