Did Obama Get a Heads-Up On the Supreme Court Vote From Elena Kagan?

Drudge seems to think so:

A lot of people are finding it curious that Obama took a pointed shot at the court yesterday, three days after the court met to vote on the cases that were argued last week. Those votes are often final, but not always as the justices read the opinions offered by justices on both sides. Some are suggesting that Obama may have been tipped off by Kagan, who wrote the defense for Obamacare while Solicitor General, and the effort yesterday was an attempt to pressure justices into changing their votes.

If he'd been tipped off to a vote that had gone his way do you think he would have made that speech? I doubt it.

Personally, I hope some justices find it offensive and instead of 5-4 the vote against Obamacare goes 6-3 or 7-2.

A Little Thought Exercise - Could Elena Kagan Still Recuse Herself From the Obamacare Case?

I don't know enough about the inner workings of the Supreme Court to give an educated answer, but while listening to Rush talk about Kagan and the Obamacare arguments I wondered if there was still an opportunity for her to back out of the case.  Given that she designed the legal defense for Obamacare she clearly had no business being part of this case.

Let's say for instance she decided not to recuse herself initially because the administration was so concerned that they'd need her vote.  At some point in the near future the justices will gather around their conference table and cast the actual votes that will decide the various cases before them.  The opinions will be assigned and the deliberation process will effective be over.  If there's a 5-4 (or more) to overturn the mandate and all of Obamacare Kagan's vote will no longer matter.  I wonder if she might be able to recuse herself at that point in order to try and retain some semblance of integrity?

Just a thought.  Anyone out there who knows more about the court than me feel free to chime in.

Bonus Obamacare Cartoon of the Day

The Supreme Court:

Ain't that the truth. Kagan's refusal to recuse herself is disgraceful.

SCOTUS Will Hear Arizona SB1070 Case, Kagan Recuses Herself But It Probably Won't Matter

More on Kagan in a minute:

The Supreme Court announced Monday they will hear a challenge to Arizona’s controversial immigration law, setting up another high-profile decision for the court’s coming term, according to the AP.

Arizona asked the court to allow the state to enforce legislation that has been blocked after being challenged by the Obama administration, including provisions that would enable police officers to question a person’s immigration status if they suspect they are in the country illegally. The law would also make it a crime to not carry proof of legal immigration status, make it agaist state law for an illegal immigrant to seek employment, and allow police to detain those suspected of being illegal immigrants without a warrant. The 9th Circut Court of Appeals blocked each of those provisions in April.

Some people are making a big deal of the fact Justice Elena Kagan recused herself from this case because of her work on it previously as Solicitor General, but is it really a big deal that could affect the outcome? Probably not. Ed Morrissey explains:

Besides, a recusal in this case is not terribly meaningful to the case itself, although it’s certainly legitimate to argue that it displays Kagan’s approach to judicial ethics. The appellate court, as Think Progress points out, overturned most of SB1070, so a tie in the Supreme Court would keep that decision in place. The Supreme Court’s test case for ObamaCare was also an overturning of the law at the appellate level, and a SCOTUS tie in that case would mean ObamaCare’s total rejection. Kagan is much more important for ObamaCare than she is on this case.

Kagan will not recuse herself from Obamacare because her absence could actually affect the outcome. She and her boss Obama have too much invested in that case for her to do the right thing and get out.

A Liberal Law Professor and Obamacare Supporter Makes the Case That Kagan Should Recuse Herself

From Slate:

Doing the right thing is easy when nothing important is at stake. Doing the right thing is much harder when there is a lot to lose. Elena Kagan is a loyal Democrat who owes her Supreme Court appointment to President Barack Obama.* She is poised to review the constitutionality of Obama’s health care statute, which, if invalidated, might do serious damage to his re-election campaign as well as the Democratic Party. Even though it would be a hard decision to make, Elena Kagan should recuse herself from hearing challenges to the act.

So far it appears that only Republicans and conservatives want Kagan to recuse herself from hearing the case, while liberals and Democrats take the opposing view. I have been a liberal constitutional law professor for more than 20 years, and a loyal Democrat. I believe the Affordable Care Act is constitutional and that it would be truly unfortunate for the country (and the party) if the court strikes it down. I also recognize that there is a much greater chance of the court erroneously striking down the PPACA if Kagan recuses herself. That said, I believe that as a matter of both principle and law, Kagan should not hear the case.

Read the rest of it for the specific points of his argument. He makes the case very well for Kagan's recusal, but the chances of that happening are approximately zero. Principles mean nothing to liberals, just winning.

Obamacare Cartoon of the Day

From Facebook:

Obamacare Cartoon of the Day

From Facebook:

Top GOP Senators Target Kagan and Obamacare

I think this will be a wasted effort because we can never expect a liberal to do the right thing:

Top Republican senators said late Friday the Justice Department has been stonewalling their request for more information on Supreme Court Justice Elena Kagan, and said her previous work as solicitor general “may satisfy both requirements for recusal” from the upcoming health-care case.

The senators, led by Minority Leader Mitch McConnell, are demanding Attorney General Eric H. Holder Jr. comply with requests for more documents about Justice Kagan’s role in planning the administration’s defense, and said unless he provides the information it could undermine confidence in the court’s eventual ruling on the case.

“President Obama chose to nominate a member of his administration to the Supreme Court knowing it was likely that, if confirmed, she would be in a position to rule on his signature domestic policy achievement,” said the four senators, who also included Senate Minority Whip Jon Kyl of Arizona; Sen. Chuck Grassley of Iowa, the ranking Republican on the Judiciary Committee; and Sen. Mike Lee of Utah.

The Supreme Court announced early this week that it would hear a challenge to the health-care law, which Mr. Obama signed last year. Questions have floated for months over whether Justice Kagan could rule impartially in the case. She was solicitor general at the time the law passed, and acknowledged during her confirmation hearing that she attended at least one meeting where litigation was discussed.

Justice Kagan said at the time her role was not “substantial,” but the senators said that’s irrelevant to the law. They said the law requires recusal if a government official participated in any matter that is the subject of litigation.

The senators also pointed to emails that suggest Justice Kagan was kept in the loop on discussions over how to defend the law. The letter was released to the press late Friday evening. A message left seeking comment from the Justice Department wasn’t immediately returned.

The Senators have no tools to force Kagan off the case any more than the lefties can force Justice Thomas off the case because of his wife's activities. Kagan will hear the case and will vote to uphold Obamacare and the individual mandate. That's a foregone conclusion. We just have to hope she doesn't have much influence on Justice Kennedy who is sure to be the swing vote in all of this.

Obamacare Quote of the Day

Name the speaker:

“I hear they have the votes, Larry!! Simply amazing!”

That would be former Solicitor General Elena Kagan, expressing her joy over the imminent passage of Obamacare to lawyer Lawrence Tribe. Kagan is now on the Supreme Court and unless she does the right thing and recuse herself, she'll be sitting in judgment of a case about which she clearly has already formed an opinion.  She is also thought to have planned the legal defense for the odious bill.

Obamacare Headlines of the Day

From Drudge:

OBAMACARE TO SUPREMES...
5 1/2 HOURS: High Court to Rule on Obama's mandate...
26 States Want Entire Law Struck Down...
Decision 4 Months Before Election Day...
Justice Kagan called to recuse herself...

Let's expand a little on that last item:

The Supreme Court’s announcement Monday that it will hear challenges to President Obama’s health care law put a spotlight on Justice Elena Kagan, who worked in the administration while the law was being written and, conservatives argue, helped craft its legal defense.

“Before the Supreme Court case is heard, we need to know if Justice Elena Kagan helped the Obama administration prepare its defense for Obamacare when she was solicitor general. The Justice Department must answer serious questions about whether Justice Kagan has an inherent conflict of interest, which would demand that she recuse herself from the Obamacare case,” said Rep. John Fleming, Louisiana Republican.

At the same time, liberal groups and Democrats in Congress have been pushing for months for Justice Clarence Thomas to recuse himself, citing his wife’s stated opposition to the law as an indication that he cannot rule impartially.

At stake in the case is the fate of the president’s massive health care overhaul, which passed Congress on the strength of Democratic votes last year and has a checkered record in lower courts.

There's a huge difference between someone who probably helped plan the Administration's legal defense for Obamacare, and a guy whose wife has been an activist against it. Not the same at all, and the only reason we're getting this "moral equivalence" between Kagan and Thomas is because the left is desperate to keep her on the case. If she's gone, it's pretty much a sure thing they lose. If she stays, they hope she can persuade Justice Kennedy in the direction of upholding Obamacare.

They're even more desperate to get Thomas off the case because that pretty much guarantees a victory for Obama.  However, I'm confident that Thomas isn't going anywhere so they'll have to just keep complaining without result.

Rep. Anthony Weiner Is Going to Have a Bad Week

Think last week was bad for the crotch-tweeting Rep. Anthony Weiner (D-NY and NYC Mayor Wannabe)?  Last week may end up being a picnic compared to what's coming (from Andrew Breitbart and Big Government):

A new woman has come forward with what she claims are photographs, chats, and emails with Rep. Anthony Weiner (D-NY).

These appear to undermine severely Rep. Weiner’s explanations that he was the victim of a “prank” or a “hack.”

The detailed new information suggests that the Brooklyn- and Queens-based representative and the young woman in question were involved in an online, consensual relationship involving the mutual exchange of intimate photographs.

BigGovernment.com and BigJournalism.com were approached regarding this information more than a week prior to the separate, independent event of Friday, May 27, 2011, when a link to the now-infamous “gray underwear” photograph appeared publicly on Rep. Weiner’s Twitter feed.

We will be updating BigGovernment.com and BigJournalism.com throughout the day with photographs, timelines, and other clarifying details. However, we will not be releasing all of the material because some of it is of an extreme, graphic nature.

One thing Breitbart knows how to do is get the most impact out of damaging material.  Weiner is in for a rough ride.

One thing I haven't mentioned during this whole thing is Weiner's dishonest attacks on Supreme Court Justice Clarence Thomas.  Weiner has been demanding, along with a number of other lib Democrats, that Thomas recuse himself from the Obamacare case because Thomas' wife Ginny is a conservative activist who has worked to stop Obamacare.  Weiner's goal is an 8 member court hearing the case, and that would likely result in a 4-4 decision which would uphold whatever the latest lower court ruling was.  He figures that would be the best chance for Obamacare to win

Of course, Weiner never asked for Justice Elena Kagan to recuse herself.  She's only the former Obama Solicitor General who helped design the legal defense for Obamacare.  Amazingly, Weiner couldn't seem to see a conflict there.

The good news is Weiner can't touch Clarence Thomas.  Thomas has a lifetime appointment to the Court and Weiner holds no power over him.  I'm confident that Thomas will remain on the case and will rule on it according to his legal beliefs, and not the politics of his wife (which are probably a lot like his).  Lefties can complain, but that's nothing new.

Oh, and they may want to find another spokesman for their cause.  Weiner may not be there much longer.

Dems Think They Will Lose the Obamacare Case When it Gets to the Supremes

Why else would they try and get a conservative justice to recuse himself from the case?

As chances grow that the Supreme Court will take up the constitutionality of the 2010 health care law, a political battle is brewing over whether some justices should recuse themselves from what is likely to be a high-profile case.

Seventy-four House Democrats, led by New York Rep. Anthony Weiner, sent a letter to Justice Clarence Thomas Wednesday calling on him to sit out deliberations on the Affordable Care Act because of his wife's ties to a lobbying group that opposes the health care law.

"The appearance of a conflict of interest merits recusal under federal law," the letter said. "From what we have already seen, the line between your impartiality and you and your wife's financial stake in the overturn of healthcare reform is blurred."

Justice Thomas' wife, Virginia Thomas, founded the conservative group Liberty Central, but stepped down in December amid controversy over a memo under her name calling for the repeal of the "unconstitutional law."

The group, which later took down the memo from its site, blamed staff error and said it "assiduously avoids" taking positions on the constitutionality of issues.

Under federal law, justices have to recuse themselves from cases where they feel a conflict of interest may arise, or if their spouses have a financial stake in the case, but the decision ultimately rests with each justice.

Rep. Weiner is...well, a wiener.  He's trying to politicize the court with this letter and it won't work.  Thomas, who has a lifetime appointment, doesn't give a rat's behind what Weiner or any other Democrat thinks about him.  He's already seen Congress as its worst during his confirmation hearing.  What can they do to him?  Nothing.

There's no way Thomas will recuse himself from this case. There simply isn't a viable conflict of interest. Just because a spouse has expressed a particular view of a case doesn't mean the justice has lost his impartiality. And there's absolutely no evidence of any financial interest in the case on the part of Justice Thomas.

Could it be assumed that Thomas will have a problem with Obamacare?  Certainly, but not because of his wife's activities.  That assumption comes from his history of conservative legal opinions.

If anyone should recuse themselves it would be Elena Kagan, former Solicitor General who undoubtedly participated in White House discussions about Obamacare and how it might play out in the courts. She clearly has a bias toward the law and as long as she stays on the case, the Dems' arguments about Thomas are essentially ridiculous.

Nice try...wiener.

Supreme Court Headline of the Day

From Drudge:

Kagan's first vote is against an execution -- over safety of lethal injection drug...

Yeah, we wouldn't want to execute somebody with drugs that aren't safe.

This is what you get when you put liberal law professors on the Supreme Court.

Scalia Takes Kagan Shooting

Perhaps the reason the newest Supreme Court Justice Elena Kagan hasn't been a fan of your 2nd Amendment gun rights is because she's never handled a weapon.  Her fellow Justice Antonin Scalia is trying to change that:

According to two witnesses, Supreme Court Justice Antonin Scalia took fellow Justice Elena Kagan out for a lesson in skeet shooting at his shooting club in Virginia last week.

The witnesses saw Scalia at the Fairfax Rod and Gun Club, where he is a member, around noon on Wednesday of last week. He was with a woman who was noticeably diminutive in height, like Kagan, who stands at about five feet three inches. The witnesses, who got a very close look at the pair, say that the woman was the newest Supreme Court Justice.

Scalia was bending down in order to teach Kagan how to hold the shotgun, the witnesses say, and the pair were shooting skeet.

Kagan, who was nominated to the Supreme Court by President Obama in May and confirmed by the Senate in August, is generally believed to hold negative opinions toward the Second Amendment. The perception is based on a memo she penned in the eighties as Justice Thurgood Marshall’s law clerk, in which she said she was “not sympathetic” to the Second Amendment argument in a case that dealt with the District of Columbia’s gun laws. Also, during her time as a member of the Clinton administration, she played a role in instituting a temporary suspension of licenses for the importation of assault rifles. Kagan did not comment on the issue of gun rights during her confirmation hearings.

She was probably shocked that the gun didn't just go off and start shooting everybody in sight. It may never have occurred to her before that they are tools that people can control, and not inherently evil devices.

A little education is a good thing.

That'll Show 'em

I like her style:

A British woman stripped down to her bikini and strutted defiantly through a swanky Dubai mall after an Emirati woman covered head-to-toe in black confronted her for wearing a low-cut shirt, police said Thursday.

Mall security detained both women and took them to a police station for questioning Wednesday. They were released later in the day after the Emirati woman lodged a complaint for public indecency against the Briton, said a police official, who spoke on condition of anonymity because he was not authorized to speak to the media.

Police said the British woman, whose name was not released, was shopping in the five-star Dubai Mall when the Emirati woman approached her and criticized her for wearing a shirt she felt violated the conservative dress code followed by most women in this Muslim country.

The two argued, then the Briton stripped down to her bikini and walked through the mall filled with luxury shops and near hotels with swimming pools.

Given the way Britain has surrendered to creeping Sharia law it's a wonder you could find a British woman this courageous.

Another fan of Sharia law is the newest member of the Supreme Court, Elena Kagan. Someone suggested yesterday that perhaps she should strut through Dubai in a bikini so she can see Sharia law in action.

Well, now that I think about it, I'm not sure I'd wish that on our worst enemy.

Elena Kagan: Anti-Military but Pro-Sharia Law

From Big Peace:

The Center for Security Policy’s web ad raising questions about Elena Kagan’s Supreme Court nominationtargets her dedication to Shariah law:

“As Dean of Harvard Law School, Elena Kagan banned military recruiters from campus because US law said they couldn’t enlist homosexuals. Well, she invited the Saudi’s ‘recruiters’ to promote their legal code–Shariah– which calls for homosexuals to be murdered and women to be treated like animals.”

If Kagan had genuinely objected to the US military’s “don’t ask, don’t tell” policies, she would not have sponsored a November 2008 lecture promoting the Malaysian Shariah and secular (Section 377) anti-gay laws of “Do Ask, Do Tell, Do Flog and Do Imprison for 20 Years.”

There's a lot more background at Big Peace.

It's too bad that fools like Kagan fail to realize that under Sharia law they'd be the first to say goodbye to their heads.

Supporter of Gay Marriage Urges the Supreme Court o Oppose Gay Marriage

I know that title is a bit confusing but I'm referring to an article by Jonathan Rauch, a guy who has written books in support of gay marriage and is himself in a legal gay marriage.  In the piece Rauch encourages Elena Kagan to support California's Proposition 8, the measure which outlawed gay marriage in California, on the basis that California voters' rights to define marriage outweigh the rights of gay marriage supporters.

ELENA KAGAN uttered neither the word “gay” nor “marriage” in her opening statement at the Senate confirmation hearings on her nomination to the Supreme Court, but she addressed the issue nonetheless. No, she didn’t say how she will vote when gay marriage comes before the court, as it may soon. What she did say was this:

“The Supreme Court, of course, has the responsibility of ensuring that our government never oversteps its proper bounds or violates the rights of individuals. But the court must also recognize the limits on itself and respect the choices made by the American people.”

Ms. Kagan may not have had gay marriage in mind when she made that statement, but it could not be more relevant. She seems to be saying that protecting minority rights is the Supreme Court’s job description, but also that a civil rights claim doesn’t automatically trump majority preferences. This is something absolutists on both sides of the gay marriage debate don’t like to hear, but it has the virtue of being right.

While the Senate considers Ms. Kagan’s nomination, Judge Vaughn Walker of the United States District Court in San Francisco is deciding how to rule in a major lawsuit challenging Proposition 8, the 2008 ballot initiative that revoked and banned same-sex marriage in California (while leaving the state’s marriage-like domestic partner program intact). Judge Walker may declare that the United States Constitution gives gay couples the right to marry — a decision sure to start a political firestorm (possibly just in time to give the Democrats an additional headache in this year’s midterm elections). Whatever he decides is likely to be appealed, presumably up to the court that Ms. Kagan seems likely to join.

This case is not primarily about the merits of gay marriage. It is primarily about who gets to decide. The plaintiffs say marriage is a civil right, and when a civil right is assailed, the Supreme Court has no choice but to take command. If the Supreme Court doesn’t protect minority rights, it abdicates its job.

Proposition 8’s defenders retort that gay marriage is not a civil right, because it is not marriage, or not marriage as defined by most Californians. If the court does not defer to the voters’ wishes, it oversteps its bounds.

Ms. Kagan seems to reject both forms of absolutism. Civil rights, she implies, are important, but so is judicial modesty, and a sensible judge balances the two. A sensible judge can say something like, “Same-sex marriage may indeed be a civil right, but not all civil rights demand immediate judicial intervention, and other important interests militate against imposing this one on the whole country right now.”

Viewed in that light, the argument for upholding California’s gay marriage ban has merit — not because the policy is fair or wise (it isn’t) but because it represents a reasonable judgment that the people of California are entitled to make. Barring gay marriage but providing civil unions is not the balance I would choose, but it is a defensible balance to strike, one that arguably takes “a cautious approach to making such a significant change to the institution of marriage” (as the lawyers defending Proposition 8 write in one of their briefs) while going a long way toward meeting gay couples’ needs.

There's more at the link. Given the threats of violence that have been directed at others who have supported Proposition 8 I'm guessing this guy will be getting some interesting mail in the next few days.

GOP Won't Fight for Judges

From Politico:

Republican senators have already blamed the breezy confirmation process for Elena Kagan on simple math, saying Kagan’s confirmation to the Supreme Court is already ensured with 58 Democrats in the Senate.

But the GOP has more than just a math problem with Kagan. It has a passion problem — the party, which has used judicial nominations to stoke the culture wars for more than a decade, appears to have lost its edge on judges.

Now some conservatives worry that if Republicans can’t gin up a real battle over a left-leaning high court nominee from President Barack Obama in an election year, how can they be expected to grind out fights on dozens of lower-court nominees who are getting lifetime appointments to the federal bench?

“Maybe we have fallen down on the job,” Alabama Sen. Jeff Sessions, ranking Republican on the Judiciary Committee, told POLITICO. “I think a lot of Republicans tend to say, ‘Well, the president gets whoever he nominates.’”

This is yet another example of the Republicans playing by rules the Democrats refuse to follow. Yes, when our guy is president we believe he should get who he nominates, but the Democrats don't think that way and will fight with every trick they've got. If the GOP Senators can't bring themselves to fight for their voters with the same passion, they need to step down and let's get some people in there who will not handicap themselves against their political enemies.

Senator Hatchets Kagan

Elena Kagan will not be getting Senator Orin Hatch's vote.  Here's the statement he released:

I have carefully examined Solicitor General Elena Kagan’s record, actively participated in the entire Judiciary Committee hearing, and considered the views of supporters and opponents from Utah and across the country. Qualifications for judicial service include both legal experience and, more importantly, the appropriate judicial philosophy. The law must control the judge; the judge must not control the law. I have concluded that, based on evidence rather than blind faith, General Kagan regrettably does not meet this standard and that, therefore, I cannot support her appointment.

Supreme Court Justices who, like General Kagan, had no prior judicial experience did have an average of 21 years in private legal practice. General Kagan has two. The fact that her experience is instead academic and political only magnifies my emphasis on judicial philosophy as the most important qualification for judicial service.

Over nearly 25 years, General Kagan has endorsed, and praised those who endorse, an activist judicial philosophy. I was surprised when she encouraged us at the hearing simply to discard or ignore certain parts of her record. I am unable to do that. I also cannot ignore disturbing situations in which it appears that her personal or political views drove her legal views. She promoted the Clinton administration’s extreme position on abortion, including the barbaric practice of partial-birth abortion.

As Dean of Harvard Law School, she blocked the access by military recruiters that federal law requires. And she took legal positions on important issues such as freedom of speech that could undermine the liberties of all Americans.

General Kagan is a good person, a skilled political lawyer, a brilliant scholar, and was a fine law school dean. I like her personally and I supported her to be Solicitor General. But applying the standard I have always used for judicial nominees, I cannot support her appointment to the Supreme Court.

Hatch is right on all that stuff, and there's no reason for any Republican to support her nomination.

American Thinker also has a devastating piece on Kagan that's worth reading.

Political Video of the Day

Supreme Court Justice-wannbe Elena Kagan can't even tell us if the government can legally order us to eat our vegetables: