Judge advocate?

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The Supreme Court will hear challenges to the health care reform act early next year, and Justice Elena Kagan can’t allow herself to go near it.

The judiciary was established precisely to have independent, uninvolved, objective and detached observers stand in judgment where there are disputes of law or fact. The evidence is not all in – there are likely memos, briefs, e-mails yet to be discovered – but the available evidence certainly casts serious doubt on Elena Kagan’s standing as a dispassionate and impartial observer in this case.

Indeed, one single e-mail proves it: In a missive to liberal professor Laurence Tribe, Kagan once wrote of the health care law in question, “I hear they have the votes, Larry!! Simply amazing.”

Those are the words, and the exclamation points, of an excited advocate for the law. Now she will sit in judgment of it on behalf of us all?

Is there any question how she would vote?

We’re not suggesting Mr. Obama would have done this – but a president who wanted his signature piece of legislation to stand up at the Supreme Court might have that in mind when appointing justices from his team. Such a cynical ploy would only work, of course, if the person in question violated all ethical canons and declined to recuse himself or herself from the case.

It just so happens Elena Kagan was the Obama administration’s solicitor general – the person responsible for advocating the government’s positions before the Supreme Court. Fact is, Kagan has never been a judge – never anything but an advocate.

In fact, Kagan was more of an advocate than any previous solicitor general in our history: The office traditionally has been involved in cases only on appeal; reports indicate Kagan made sure her office was involved in the health care reform act even before it was law.

Writes Carrie Severino of the Judicial Crisis Network:

“As President Obama’s top advocate, Kagan headed the office responsible for formulating the administration’s defense of (the health care law) and oversaw the arguments both on appeal and in the lower courts ... The president is now asking her to adopt the very same positions her office helped craft for him on this matter, but this time, as a Supreme Court Justice. Her jump from advocate to judge on the same issue raises profound questions about the propriety of her continued participation in the case. ... To use a sports analogy, would anyone trust the outcome of a close game where the referee had been a coach for one of the teams earlier in the game?”

Adds John Vinci of Americans for Limited Government, “she and those who reported to her were heavily involved in framing the arguments supporting the law.”

Putting it in the light most favorable to Ms. Kagan, having never worn the robe of impartiality, it’s quite possible she might never even see the problematic nature of her sitting on the Obamacare case. She has the obligation to see it. If she has a modicum of the sense of propriety and honor that her supporters say she does, she ought to recuse herself from sitting in judgment of the health-care law she plainly favored.

Perhaps the president, who no doubt would want the law to rise or fall purely on its merits – and not at all amid a whiff of favoritism – ought to encourage Ms. Kagan to remove herself from the case.

Regardless, the court’s decision next June could be pivotal in next November’s elections. Would an overturning of it, primarily the ominous “individual mandate” requiring every American to buy health insurance, be the death of the Obama administration – or would it embolden his supporters? Would an upholding of the law propel Mr. Obama to re-election – or further enrage the opposition at the polls?

For all its implications for our privacy and individual liberty, and its certain impact on political fortunes for years to come, commentator Charles Krauthammer is right: This case will likely be the most consequential in nearly 40 years, since Roe v. Wade.

The whiff of history in the air alone might impel Elena Kagan to want to be a part of that. Honor and integrity forbid it.

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LocalLawyer
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LocalLawyer 11/15/11 - 10:58 pm
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Bravo! Well done AC staff.

Bravo! Well done AC staff.

desertcat6
1140
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desertcat6 11/16/11 - 12:56 am
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Ditto!

Ditto!

carcraft
28444
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carcraft 11/16/11 - 04:01 am
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Integrity? Seldom used and

Integrity? Seldom used and never understood word in the liberal lexicon! Obama appointed her to posion the Supreme Court!

Jon Lester
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Jon Lester 11/16/11 - 05:00 am
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Scalia and Thomas have been
Unpublished

Scalia and Thomas have been to their share of political fundraisers, including some overtly dedicated to "Obamacare." Irregardless of whether six or nine justices listen to relevant arguments next March, previous SCOTUS rulings have upheld the absolute meaning of the phrase, "regulate commerce," and the Second Militia Act of 1792, specifically requiring able-bodied men to obtain guns, powder and ammunition by their own means, was never challenged on the basis of its individual mandate.

Techfan
6462
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Techfan 11/16/11 - 06:06 am
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Good quote from the people

Good quote from the people that brought us the swiftboaters. Judicial Crisis Network (formerly Judicial Confirmation Network) is nothing but one of the many right wing manifestations of the Donatelli Group, a right wing PR firm. Donatelli, aka Campaign solutions, is the PR firm for the RNC, numerous Republican politicians, and numerous state Republican parties, including SC (oh, and a little group called Citizens United). I'm sure they're not biased. Not surprisingly, The AC neglects to mention that on the very day the Supreme Court agrees to hear the case, Scalia and Thomas were featured guests at the Federalist Society annual dinner that was sponsored, in part, by the law firm that will argue the case for the states in front of the US Supreme Court. They also been wined and dined and essentially paid off by many of the groups opposing the health care law, not to mention Thomas' wife received around $700,000 working for groups that opposed the law (that he somehow forgot to disclose for 20 years). There's the rest of the story, and there's the real cases of conflict of interest and reasons for recusal.

Rhetor
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Rhetor 11/16/11 - 06:20 am
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You're just worried that

You're just worried that Kagan is a likely vote for sanity. Conservative Justice Clarence Thomas has an even clearer conflict of interest in that his wife works for a lobbying firm that works against health care reform. Maybe they should both step aside.

Techfan
6462
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Techfan 11/16/11 - 06:37 am
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Nor was a mandate challenged

Nor was a mandate challenged with "An Act for the relief of sick and disabled seamen" in 1798. With John Adams as President, Thomas Jefferson as President of the Senate, and many other founding fathers as members of Congress, you'd think they might have a pretty good idea as to the original intent of the Constitution.

desertcat6
1140
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desertcat6 11/16/11 - 06:44 am
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If the rule of thumb on

If the rule of thumb on recusal was knowledge, affiliation or kin, just about every judge could be called on to recuse themselves on most lawsuits. Reminds me of the degrees of seperation game with Kevin Bacon. There is a vast difference between association with an issue, and actually working on the passage of a law and its constituitionality as the lead counsel for the president.

Techfan
6462
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Techfan 11/16/11 - 06:51 am
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But financial compensation by

But financial compensation by one side of a case is OK? Most folks would call that bribery.

carcraft
28444
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carcraft 11/16/11 - 06:54 am
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Rehtor-Vote for sanity? LOL

Rehtor-Vote for sanity? LOL 10 years of taxes to pay for 6 years of care and we are broke! Vote for sanity? Companies are already providing less health care to employees and more people are uninsured than before Obama care was passed becuase businesses don't want ot get stuck with the cost! Vote for sanity, about 60% of Americans don't want it, the leech class sucking the life blood out of the productive are the only ones in favor of it...

Techfan
6462
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Techfan 11/16/11 - 07:46 am
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"leech class" Gotta love the

"leech class" Gotta love the compassion. More small businesses are offering insurance, more kids in the 19-26 age group are insured, and the number of insured will continue to increase as more of thhe health care bill is phased in. Companies have been providing less care for more money for years, well before Obama even ran. Every year we have a meeting where they tell us how much more in premiums we'll have to pay and what they won't cover, and that been every year since 2000. Health insurance costs increased 131% from 1999-2009. The affordable care at wasn't signed into law until March, 2010. Sorta blows the "it's Obama's fault" theory.

rmwhitley
5547
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rmwhitley 11/16/11 - 07:52 am
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Ah, isn't America wonderful?
Unpublished

Ah, isn't America wonderful?

justthefacts
24963
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justthefacts 11/16/11 - 08:04 am
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"bribery"? Are we now talking

"bribery"? Are we now talking about the latest Nancy Pelosi revelations?

carcraft
28444
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carcraft 11/16/11 - 08:09 am
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Tech Fan- Here is an article

Tech Fan- Here is an article on how health care costs under Obama care are affecting White Castles restaurants http://mjperry.blogspot.com/2010/07/obamacares-devastaint-impact-on-whit... This article talks about how health care premiums have risen for business owners. I don’t know where you get your facts since you don’t link a source. http://www.ft.com/intl/cms/s/0/b649007e-e92e-11e0-af7b-00144feab49a.html According to these two articles your information is wrong.

Riverman1
93455
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Riverman1 11/16/11 - 08:23 am
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What does Elena Kagan know

What does Elena Kagan know about FAMILY health care plans? She looks like conservative Dick Morris so maybe she's not all bad. I bet they could fill in for each other at public appearances if they dressed like the other.

Techfan
6462
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Techfan 11/16/11 - 08:29 am
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The FT article says costs

The FT article says costs went up 9%. Check your math and you'll see that 9% is 4% less than the average of 13% yearly increase in the previous decade. As to White Castle http://www.npr.org/blogs/health/2010/05/19/126971796/white-castle-calls-...

Techfan
6462
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Techfan 11/16/11 - 08:35 am
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just: Check out the list of

just: Check out the list of others, besides just Pelosi. I know the right wing sites skipped the Republicans on the list and just mentioned her, but it goes deeper. It's criminal on both sides (actually it's not but should be).http://www.cbsnews.com/8301-18560_162-57323527/congress-trading-stock-on-inside-information/

justthefacts
24963
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justthefacts 11/16/11 - 08:52 am
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Tech, I know, but the Libs

Tech, I know, but the Libs are so above this unsightly stuff don't you know? And Nancy is the only one who claims it's nothing but a right wing attack. It's CBS for gosh sakes. Right wing???

wondersnevercease
9218
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wondersnevercease 11/16/11 - 09:03 am
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LOL@just the facts...well put
Unpublished

LOL@just the facts...well put

Chillen
17
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Chillen 11/16/11 - 09:19 am
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If she doesn't recuse herself

If she doesn't recuse herself then she is not fit to be a Supreme Court Justice. The rule of law is clear. (though the marxists in office clearly don't seem to give a darn about our law or our Constitution)

It will be a day of justice for obamacare. It will be struck down in court. With her or without her.

Chillen
17
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Chillen 11/16/11 - 09:35 am
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Can you imagine if this bill

Can you imagine if this bill passed? A bill that FORCES Americans to purchase something.

Here's what could be next.
Forced purchase of government motors cars.
Forced purchase of electric powered cars.
Forced purchase of sunscreen by all citizens who are white (to cut down on cancer chance).
Forced purchase of straw hats to protect us from the sun.
Forced purchase of a cell phone so the govt can reach us in an emergency.

The list would be absolutely endless.

We simply MUST get this government under control. And fast.

1984 is a comin' - like a freight train.

faithson
5507
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faithson 11/16/11 - 09:47 am
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Here we go boys... Scalia

Here we go boys... Scalia and Thomas have the same problem. Please all of you out there who have any sense, please read this article that exposes these justices relationships with major corporations and jurists that have cases before the court. Same as Kegan. You must vote for recusal in all THREE cases. You are being intellectually dishonest if you don't. http://www.latimes.com/news/politics/la-pn-scalia-thomas-20111114,0,7978...

faithson
5507
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faithson 11/16/11 - 09:54 am
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and Oh by the way, Federal

and Oh by the way, Federal judges would have to recuse themselves by law in all three cases too.. as in also. code’s Canon 4C, which states, “A judge may attend fund-raising events of law-related and other organizations although the judge may not be a speaker, a guest of honor, or featured on the program of such an event.“ Scalia and Thomas were the guest of Honor at a Law institution fund-raiser. RECUSE THEM ALL !!!

Chillen
17
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Chillen 11/16/11 - 09:53 am
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Sorry faithson, attending a

Sorry faithson, attending a dinner is different from directly working in a legal capacity for the obama administration to defend the law.

Apples & Oranges.

faithson
5507
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faithson 11/16/11 - 09:55 am
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I'm not arguing Justice Kegan

I'm not arguing Justice Kegan Chillen.

Chillen
17
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Chillen 11/16/11 - 09:59 am
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You are comparing the other

You are comparing the other two to kegan. You said: "Scalia and Thomas have the same problem"

They do not. No where close to the same problem.

faithson
5507
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faithson 11/16/11 - 10:05 am
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the interesting part is that

the interesting part is that all three justices will hear the case and decide and Penn State will play football next season... We in the collective have lowered the standards for sure.

macktaylor
29
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macktaylor 11/16/11 - 10:13 am
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What is the government going

What is the government going to make me buy next? Obama is steering us down a dead-end course to Socialism. Make us buy everything till we can't afford anything for ourselves then have to turn to the government for handouts. This madness has to stop. I may cancel my insurance in protest of this ridiculous bill. Probably not but this thing needs to die or the America we once knew with life, liberty and the pursuit of happiness will no longer exist.

burninater
9921
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burninater 11/16/11 - 10:15 am
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This is from carcraft's

This is from carcraft's link:

"The Columbus-based family owned restaurant chain - known for serving small square hamburgers called "sliders" – says a single provision in the bill will eat up roughly 55 percent of its yearly net income after 2014. Starting that year, the bill levies a $3,000-per-employee penalty on companies whose workers pay more than 9.5 percent of household income in premiums for company-provided insurance. White Castle, which currently provides insurance to all of its full-time workers and picks up 70 to 89 percent of their premium costs, believes it will likely end up paying those penalties."

So according to White Castle, 11% of each worker's premium costs is >9.5% of their employees' annual HOUSEHOLD income. Therefore, the annual HOUSEHOLD income of these employees would almost be 100% consumed by their healthcare PREMIUMS alone. Think about that for a moment, and then tell me that we don't have a serious structural problem in this country when it comes to worker compensation and helathcare costs. And don't try to dodge the issue by saying these low wage positions are for high school kids and second jobs -- these are White Castle's full-time positions at issue.

faithson
5507
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faithson 11/16/11 - 10:19 am
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the power to 'decide' the

the power to 'decide' the case IS the problem. All three have THIS problem in my eyes and the eyes of any good jurist. They attended a function in a capacity that Federal Judges are denied. Why hold them to a lesser standard.

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