We have nine members of the US Supreme Court. The media is focusing on only five of them. Four of them are getting a pass. Four of them are considered to be above and beyond question. And those are the four liberal justices. You hear the media saying the Conservative Judges need to be opened minded. But yet the liberal slanted Judges are not expected to be open-minded. The media's not asking them to consider things outside their normal purview. But the four conservatives and the one moderate, Anthony Kennedy? Well......
The media is challenging them to be open-minded about this, to maybe see the way to voting against the way they are preternaturally inclined. So four justices are given a pass. The four liberal justices are considered, to have the right way of thinking and pressure is being brought to bear on the other five. But beyond that, do you not find it troubling that in a case so blatantly unconstitutional, in a law that is so blatantly in violation of the United States Constitution, we have to rely on one or two justices to protect the republic? You would think that this wouldn't even be a question for all nine of them.
Our Judges have gotten away from what the Constitution gives them power to do. They are to tell Congress and the President how and what the Constitution says about a law they wish to pass. And they are to base this on what the Constitution says, not what case history says. There have been some bad judgements made by the Supreme Court in the past, and that is why they don't need to make judgement on case history, because then all they are doing is making another bad judgement based on a previous bad judgement. If you use the Constitution every time, the judges should be making Constitutional judgements.
Like I said there have been some bad judgement made in the past from the bench. And now with Obama-Care before the Supreme Court, I believe that there is a judge that needs to recuse herself.
First the law: A federal statute requires that any “justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Federal law also requires that a judge recuse herself if the judge previously served in governmental employment “and in that capacity participated as a ... counsel, adviser, or material witness concerning the proceeding or has expressed an opinion concerning the merits of the particular case in controversy.”
As many have pointed out, there are legitimate arguments that these rules point to recusal. Was Kagan a “counsel” or “adviser” on this issue? We know that she was on an e-mail exchange between her top deputy, Neal Katyal, and Associate Attorney General Tom Perrelli, about a meeting to discuss the litigation strategy for the ACA litigation, and lawyers in her office would be present. We also know she attended at least one meeting where the litigation was discussed
We also know that Kagan wrote an e-mail to Laurence Tribe, a famous Harvard constitutional law professor who was also working for the administration at the time the law passed, in which she said, “I hear they have the votes, Larry!! Simply amazing.” The email's subject line was "fingers and toes crossed today!"
A few years ago, Justice Scalia recused himself from a case challenging the constitutionality of the “under God” provision of the Pledge of Allegiance because he made a few for offhand comments about the case during a speech. Most liberals approved of Scalia’s decision at the time. The case for Kagan’s recusal, while different, seems even stronger to me. Scalia recused himself because he preliminarily aligned himself with a view of the case while it was pending. But Kagan was politically aligned with the president who is identified with the law at issue. She was aligned with him when the law was passed, and that president—and his administration’s—future may be severely impacted by the court’s ruling on the ACA. Scalia’s problem in the Pledge case was limited to what he said. Kagan’s problem with the ACA lies in what she did.
Take away any one of these facts and perhaps the recusal issue would change.
1) She served as the solicitor general of the United States during the time that the ACA was furiously debated in Congress, discussed in town halls across the country, and enacted;
2) The ACA is the most important, controversial, and partisan piece of legislation put forward by the Obama administration while Kagan worked as the president’s top lawyer to the Supreme Court. If he didn’t consult with her about it, he should have.
3) She was nominated to the Supreme Court by President Obama shortly after the ACA was passed, and the president is closely and personally identified with the law;
4) She has to review the law just a few months before President Obama runs for re-election;
5) His re-election might well be affected by how the Supreme Court rules; and
6) We know she celebrated the passage of the law.
But she did all of these.....
The Supreme Court is increasingly seen as a partisan political institution making political decisions instead of a true court deciding cases using the Constitution as their guide. Justice Kagan has a golden moment to display that at least one Supreme Court justice has integrity and character that exceed her party loyalty and political past. If she sees herself as a political official who, because of the office she occupies, gets to cast an important vote on an issue that may decide an election, she should stay on the case. But, if she views herself as a judge of law who is obligated to approach legal issues objectively and open-mindedly without regard to partisan political outcomes, she ought to step aside.
Nothing less than the integrity of the Supreme Court is at stake.
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