Need any more reason why this Obamabot should recuse herself from the upcoming case?
On Sunday, March 21, 2010, the day the House of Representatives passed President Barack Obama’s Patient Protection and Affordable Care Act, then-Solicitor General Elena Kagan and famed Supreme Court litigator and Harvard Law Prof. Laurence Tribe, who was then serving in the Justice Department, had an email exchange in which they discussed the pending health-care vote, according to documents the Department of Justice released late Wednesday to the Media Research Center, CNSNews.com's parent organization, and to Judicial Watch.RELATED: Dems Worried Sick Obamacare in Supreme Court’s Hands
“I hear they have the votes, Larry!! Simply amazing,” Kagan said to Tribe in one of the emails.
The Justice Department released a new batch of emails on Wednesday evening as its latest response to Freedom of Information Act requests filed by CNSNews.com and Judicial Watch. Both organizations filed federal lawsuits against DOJ after the department did not initially respond to the requests. CNSNews.com originally filed its FOIA request on May 25, 2010--before Elena Kagan's June 2010 Supreme Court confirmation hearings.
The March 2010 email exchange between Kagan and Tribe raises new questions about whether Kagan must recuse herself from judging cases involving the health-care law that Obama signed--and which became the target of legal challenges--while Kagan was serving as Obama's solicitor general and was responsible for defending his administration’s positions in court disputes.
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.”
In response to questions from CNSNews.com, Prof. Tribe said on Thursday that other than the references in his email exchange with Kagan on March 21, 2010, he never had any communications with Elena Kagan while she was solicitor general relating to pending or enacted health-care legislation or actual or anticipated health-care related litigation. Tribe also said he sees no reason to believe 28 USC 455 would require Kagan’s recusal from cases involving PPACA.
The March 21, 2010 email exchange between Kagan and Tribe was started by Tribe who addressed an email to Kagan at her Justice Department email account. Tribe also copied this message to another individual, whose name has been redacted from the version of the document DOJ released to the MRC.
The subject line on Tribe’s email reads: “fingers and toes crossed today!”—an apparent reference to the unusual Sunday vote on the health-care bill that would occur later that day in the House. In the email, Tribe reminded Kagan of a dinner meeting they had to postpone and suggested they reschedule it.
Kagan responded to the message in a return email that is addressed solely to Tribe. The subject line on this Kagan-to-Tribe email is: “Re: fingers and toes crossed today!”
Kagan punctuated the first sentence of this email to Tribe with two exclamation marks: “I hear they have the votes, Larry!! Simply amazing.”