A stunning 2010 e-mail exchange between Supreme Court Justice Elena Kagan and Harvard Law Professor Lawrence Tribe has come to light. Prior to her confirmation hearings before the Senate Judiciary Committee in June 2010 for her nomination to the Supreme Court, Kagan let Mr. Tribe know that she was delighted with the vote on nationalized healthcare that had just passed. “I hear they have the votes, Larry!! Simply amazing,” Kagan said to Tribe in one of the emails. It’s obvious by their email exchange that Kagan was expressing her very positive opinion of the legislation.
Certainly the Obama Administration knew her opinion on the then pending legislation. Was she picked because she had expressed her opinion? If so, then her testimony at her Supreme Court confirmation hearings was a sham. CNSNews reports the following:
On July 13, 2010, during her confirmation process, the Republicans on the Senate Judiciary Committee sent Kagan a letter asking her a series of questions probing her possible involvement in health care legislation or litigation during her time as solicitor general. The senators asked: “Have you ever been asked about your opinion regarding the underlying legal or constitutional issues related to any proposed health care legislation, including but not limited to Pub. L. No. 111-148, or the underlying legal or constitutional issues related to potential litigation resulting from such legislation?”
The senators also asked Kagan: “Have you ever offered any views or comments regarding the underlying legal or constitutional issues related to any proposed health care legislation, including but not limited to Pub. L. No. 111-148, or the underlying legal or constitutional issues related to potential litigation resulting from such legislation?”
Kagan’s written response to both questions was: “No.”
Here’s the problem. According to 28 USC 455, a Supreme Court justice must recuse from “any proceeding in which his impartiality might reasonably be questioned.” The law also says a justice must recuse anytime he has “expressed an opinion concerning the merits of the particular case in controversy” while he “served in governmental employment.” At the time, Kagan was serving as Solicitor General.
The recusal does not go far enough. Kagan seems to have lied under oath when she was questioned on whether she offered any view on the healthcare legislation that had passed. She had. If she was elated that the legislation had passed, then that was an indication that in her mind the legislation was constitutionally sound.