Why Should Supreme Court Justice Elena Kagan recuse herself from ruling on the Affordable Care Act
The proto-fascist National Review Online's Increasingly Dishonest Push For Kagan To Recuse Herself From Health Care Case
National Review Online's Carrie Severino is still pursuing her quixotic quest to have Supreme Court Justice Elena Kagan recused from any cases dealing with the Affordable Care Act. In a recent blog post and report, Severino has concluded that based on the evidence she has seen, Kagan should "recuse herself from any consideration of [the Affordable Care Act's] legality before the Supreme Court."
The charge is baseless. Kagan has said that she had not been involved in any substantive discussions of the health care reform law, the constitutionality of the law, or litigation involving the law.
And importantly, faced with the same evidence that she's now citing, Severino acknowledged back on April 11 that she didn't "see enough evidence to know whether Justice Kagan must recuse herself from considering the upcoming Obamacare challenges."
The facts haven't changed, but Severino's conclusions certainly have. It seems that Severino hoped she would find a smoking gun that required Kagan's recusal. And when she failed in that attempt, Severino simply reversed herself on what those facts mean.
Severino's Judicial Crisis Network put out a report arguing that Kagan took part in strategizing about health care reform litigation when she was solicitor general in the Obama administration and therefore must recuse herself from considering the case as a judge.
Severino's report cites a January 2010 email from Kagan's then-deputy in the solicitor general's office, Neal Katyal, responding to an Obama administration request that the solicitor general's office send a representative to a meeting to discuss how to defend the health care bill from legal challenges. In the email Katyal said, "Let's crush them. I'll speak to Elena and designate someone [to attend]." Katyal then became the solicitor general's office's point person on health care litigation.
But Severino already knew about this exchange on April 11 when she said there was no evidence requiring Kagan to recuse herself. Indeed, Severino cited that e-mail in an April 1 blog post about the recusal issue.
Severino next cites an email in which Katyal said he would "bring in Elena as needed." Severino noted this exchange in her April 1 blog post as well.
Severino then cites an email in which Katyal said he wanted to make sure the office was "heavily involved even in the dct [District Court]." Severino noted this exchange in her April 1 blog post as well.
Severino also argues that, because some material has been redacted from FOIA disclosures due to an exemption for certain privileged materials, Kagan needs to recuse herself. As an example, Severino cites an email in which Katyal says, "In light of this, for what it is worth, my advice (I haven't discussed this with Elena, but am cc'ing her here) would be that we start assembling a response, [material redacted] so that we have it ready to go." This email (including the redaction) was the third in a set of documents to which Severino linked in her April 1 blog post. As a whole, the redactions were almost impossible to miss in that set of documents.
So almost every piece of evidence Severino cites in her report consists of something she already mentioned on April 1. And all of the evidence was available by then. And yet on April 11, she concluded that there was nothing she had yet seen that required Kagan's recusal.
Furthermore, Severino is not the only conservative who has come to the conclusion that these documents did not require Kagan's recusal. Based on the same set of documents, Terry Jeffrey of the conservative CNS News wrote on March 29:
Did Kagan at any time as solicitor general express an "opinion concerning the merits" of the lawsuits filed against the health care law -- an act that would trigger one of the recusal standards in 28 U.S.C. 455? In the text of the emails the Justice Department provided to CNSNews.com, Kagan does not do so.
So what has changed since Severino said that she didn't see anything that required Kagan's recusal? Well, for one thing, conservative judicial icons Jeffrey Sutton and Laurence Silberman have written decisions upholding the constitutionality of the individual mandate.
Maybe the anti-health care reform forces are just getting desperate.
As is usually the case with conservatives their arguments are not based on honor or principles but what they want. They want things the way a child is obsessed with wanting something. There is no rhyme or reason, they're just going to whine and cry until they get what they want. That is actually most of what the radical right-wing National Review stands for - they demand things and they're going to throw a temper tantrum until they get it.
Koch Brother Front Group Americans For Prosperity Pushes Smear Campaign Against Me By Lee Fang
Levi Russell, Americans for Prosperity Director of Public Affairs, contributed to a blog post calling Lee a "liar." Russell, however, erroneously quoted the conversation and has refused to issue a correction.
Levi Russell, Americans for Prosperity Director of Public Affairs, contributed to a blog post calling me a “liar.” Russell, however, erroneously quoted the conversation and has refused to issue a correction.
Yesterday, Americans for Prosperity, the corporate front group founded and financed by the Koch Brothers, posted a blog post titled: “Lee Fang Lies.” The post, which was Tweeted and promoted by other conservative groups, accuses me of misrepresenting myself at the Americans for Prosperity Defending the Dream Summit last Friday. The allegations are all demonstrably false. I called AFP on the phone today to explain that their post was false and gave them an opportunity to retract it. The Americans for Prosperity’s Levi Russell, the press person involved in the smear, responded: “No, I’m not going to correct it.”
The Americans for Prosperity blog post claims that, in order to receive a press credential, I said that I was a student from California (view a copy of the post here):
Lee Fang, a blogger with “Think Progress,” lied to event organizers about his residency and status in an attempt to gain media access to the Defending the American Dream Summit, held this past weekend at the Washington Convention Center. Fang told Americans for Prosperity Foundation that he is a student “visiting from California,” who “had to fly home tomorrow” and had really hoped to cover the event.
However, Fang is listed as a “resident of Prince George’s County, Maryland” on his ThinkProgress author page. His wikipedia page says that he “attended college at the University of Maryland, College Park.” [...] Fang regularly impugns conservative authors as dishonest, yet characteristic of his reporting, his preferred tactic is dishonesty and lies.
I did say that I live in California, and that I was hoping to attend the conference before going home the next day. That is because I live in California and was traveling home that Saturday. Despite Americans for Prosperity’s best research efforts, I moved away from my native Prince George’s County several years ago, and relocated finally to northern California about seven months ago. The biography page cited by Americans for Prosperity is obviously out of date. Moreover, Americans for Prosperity never reached out for a clarification and, if they had looked past Wikipedia, I broadcast the fact that I now live in California on a regular basis when I appear on television and radio.
Unfortunately for Americans for Prosperity, I had been interviewing folks going into to the event on my way into the conference, and had a voice recorder still on in my pocket during the exchange with the group’s media staffers. The transcript of the entire conversation between myself, my ThinkProgress colleague Travis Waldron, and the Americans for Prosperity media staff is on tape, and clearly shows that I introduced myself as a ThinkProgress reporter, not a “student.” Click more at the bottom of the screen to read a transcript of the tape, or listen below here:
Contacted today, Americans for Prosperity public affairs director Levi Russell said he was responsible for the post because he “wanted to call you out.” Russell would not tell me the last name of the other Americans for Prosperity staffer I spoke to, who identified himself as Adam. Asked to issue a correction and apology for the smear, Russell said: “No, I’m not going to correct it.”
The fake patriots who call themselves conservatives smear for the same reasons they whine and throw temper tantrums. bringing truth and honor into the discussion just makes their pointed heads spin.
Herman Cain, the right-wing cretin who wouldn't know what honorable behavior was if he tripped over it Calls Democratic Minority Leader Princess Nancy
