Kagan refuses to recuse herself, based on the SCOTUS order that they'll review ObamaCare.
By John Vinci — Today, the U.S. Supreme Court agreed to hear the so-called “26-state lawsuit†against the Patient Protection and Affordable Care Act, better known as Obamacare. This announcement ends speculation whether recent Obama appointee Justice Elena Kagan will recuse herself from the case.
It is clear that Justice Kagan has refused requests that she not participate in this ruling. The failure of the Court order to note that Kagan had recused herself indicates that she has not. Traditionally, when a justice decides not to participate in a decision to hear a case, the Court order notes that fact. No notification means that it can be assumed that each justice participated in the decision, including Kagan.
The calls for Justice Kagan to recuse herself are based upon her role as Obama’s Solicitor General when Obamacare was passed. In this position, she must have been involved in the strategy decisions on how to defend Obamacare. In fact, and by her own admission, she “was present at ‘at least one’ meeting in which the challenges to PPACA were discussed.â€
Read more at NetRightDaily.com: http://netrightdaily.com/2011/11/kagan-refuses-to-recuse-on-obamacare/#ixzz1doN4nQFK
This analysis explains why Kagan must recuse herself.
Justice Kagan has stated under oath that she was never asked, nor did she ever offer, her opinion concerning the merits of U.S. Department of Health and Human Services v. State of Florida, et al., (the “HHS†case) – the major court challenge to PPACA, and the one most likely to be heard at the Supreme Court. However, there is evidence suggesting that she participated as counsel concerning the proceeding and therefore is bound by federal law to recuse herself from the case.
While Kagan’s name does not appear on any filings in the HHS case, that level of involvement is not required to necessitate recusal. The statute nowhere defines either “counsel†or “participated,†but case law does give guidance, and that guidance indicates that any personal (as opposed to pro forma) participation in a case is sufficient to trigger recusal. Thus, while the titular head of a large office might not be barred from hearing a case if there was no previous personal involvement, judges must recuse themselves if they have “previously taken a part, albeit small, in the investigation, preparation, or prosecution of a case.†United States v. Gipson, 835 F.2d 1323, 1326 (10th Cir.
LinkMaybe you legal beagles (DAT, et. al.) can explain how it is that Kagan, a Supreme Court Justice, can apparently flagrantly ignore the law in this manner.
What about the other eight justices? Don't they/won't they weigh in on this subject? What kinds of discussions are going on between the justices on this case vis a vis Kagan?
