Patterico's Pontifications

11/16/2011

“Simply Amazing;” Elena Kagan Must Recuse Herself From the Obamacare Case

Filed under: General — Aaron Worthing @ 8:13 am



[Guest post by Aaron Worthing. Follow me by Twitter @AaronWorthing.]

So the Obamacare case is moving forward. You may have heard by now that the Supreme Court has scheduled five and a half hours of argument, including significant time to discuss whether the law is severable. Some people have argued that this is a encouraging sign for the challengers to Obamacare. Some might think that they wouldn’t be talking about severability unless there was a real chance of striking down part of the law. Ann Althouse credibly argues the mere fact that they are taking this long to consider all of the issues is significant in and of itself:

The argument for upholding the law rests on a facile application of an existing line of precedent: Look quickly and see that this case is another one of those cases and stamp the law constitutional. Characterizing the case as easy is thus part of arguing for upholding the law. That’s what Tribe and others have been doing.Many of the lower court cases have, unsurprisingly, taken that route.

The Supreme Court, which controls the precedents, has to choose between that easy course and drawing a line. If it draws that line and takes down the individual mandate — and perhaps the entire health care reform — it will need to inspire our belief in the truly judicial nature of its exertion of power. To set 5 1/2 hours of oral argument is to command a dramatic performance in the Theater of Law. That will help us see the result as the product of genuine legal process.

It is an appealing analysis akin to when lawyers discuss the importance of the length of time of jury deliberations. If a case seems easy for the prosecution, but the jury is taking a long time to consider it, that is often a hopeful sign for the defense, and so on. But part of me suspects that many liberal justices would want to have a long hearing, if only to show respect for the other side. If I was Elena Kagan, for instance, trying to gain purchase on Kennedy’s mind, I would ask for a long time to discuss it just so I could show Kennedy how open-mined I was being, to gain credibility when I argue in favor of the law later.

I wrote that last sentence on the presumption that Justice Kagan has already made up her mind on the matter, mostly because, well… she has. As a recent CNS News article has shown, she was plainly rooting for the passage of Obamacare:

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.

“I hear they have the votes, Larry!! Simply amazing,” Kagan said to Tribe in one of the emails.

(You can read the entire exchange, here.)

More significantly than that, Kagan has claimed that she was not part of the process of planning the Obama administration’s legal strategy. First, that is a remarkable position for her to take, given that she was Solicitor General at the time. The Solicitor General is the President’s lawyer before the Supreme Court. She is literally the person who typically personally argues before the bench. Now, that does make her into an appellate lawyer only, but still, I don’t know a single appellate lawyer who doesn’t prefer to have some input into how the trials are handled.

The reason for this is obvious once you understand some basics about appellate procedure. First, an appellate lawyer generally cannot raise new issues on appeal (with some difficult-to-invoke exceptions); they can only make the arguments the trial lawyers made. So, for instance, in this case if the trial lawyers do not at least argue that the mandate is a tax and not a penalty, she usually can’t make that argument before the Supreme Court.

Further, the appellate court is generally stuck with the facts found by the trial court. In other words all those TV shows and movies where they say, “we need new evidence to get an appeal!” are giving you a completely false impression. The courts generally will not hear an appeal based on “new evidence.” With limited exceptions, your chief argument is that the court either had the law wrong, or had insufficient evidence to support its findings based on the evidence before it at the time (and that second argument is a pretty steep hill to climb, too). Now, I have told you before that good facts make good law, so that is one reason that an appellate lawyer would want to have an input into how the trial is run: you would want to make sure the good facts are in the record and found to be true by the court, so you can rely on them on appeal.

But further, what facts are found can significantly shape the legal argument. For instance, in the years before Brown v. Board of Education, every succession challenge to racial segregation resulted in only narrow victories. The courts would find that in a particular instance the separation resulted in inequality and thus end the separation; but because they were only finding that a particular white school was superior to a particular black school, the decision had no implication beyond the particular school in question. The black school that Linda Brown (and the other plaintiffs) had to attend was not materially equal to the all white school she wished to attend, but when Brown v. Board of Education went to trial, her lawyers stipulated that in every material sense the two schools were equal. The purpose in doing this was to put the question of whether separate could ever be equal squarely before the court, on the gamble that the appropriate precedent would be set. If the trial lawyers in Brown didn’t coordinate with the appellate lawyers, they may have passed up the opportunity to make that argument.

So to be very blunt, I find it hard to believe that the Solicitor General would not want to be intimately involved with the legal strategy of defending this law right from the beginning. I would almost say it is malpractice for her not to be involved, if that was the case.

But we don’t have to speculate too much. You see, various organizations have filed Freedom of Information Act Requests to obtain Kagan’s emails as they related to Obamacare and the government has refused to turn over all of the information. The reason why is intriguing. I’ll let Carrie Severino explain:

We have received multiple documents concerning Kagan’s involvement in the PPACA litigation containing redacted material that is exempted from production under FOIA’s “b(5)” exemption. That exemption covers material normally protected by a privilege that makes it immune to disclosure, like the attorney-client privilege or, in the case of government policy makers, the deliberative process privilege. The implications of the numerous b(5) deliberative process exemptions are serious because they show that Kagan, unsurprisingly, received information about the PPACA litigation involving strategy (for that is what it means to deliberate) while Solicitor General. Because of the b(5) claims, we know that she is ethically barred from disclosing both what she learned and said about the government’s views of the case to anyone.

So Kagan has said she was not involved in the strategy of defending the law, but legal theories put forth by the Obama administration in denying public access to the evidence says something different.

So she was cheering its passage and getting briefed on strategy. And bluntly, it is common for Solicitor Generals who become Supreme Court justices to sit out of many cases right after their admission to the bench. It’s one of the trade-offs that comes with that kind of appointment. And that is precisely what should happen here.

And mind you, this is not an advantageous result for either side. Contrary to what Investor’s Business Daily thinks, if the Supreme Court splits 4-4, this doesn’t leave Obamacare in place; it leaves the lower court decisions—all of them—in place. So in the Eleventh Circuit, the mandate is struck down, but in the D.C. Circuit it is in place, and so on… Indeed, the Sixth Circuit includes the Michigan where they have upheld the mandate, but Michigan was also a participant in the Eleventh Circuit case where it has been struck down. And that chaos is in a real way the worst of all of the outcomes. And since Kagan would not be able to sit on any case challenging the law at least until the Obama administration leaves office and a new case arising wholly from a post-Obama administration defense team arrives at the Supreme Court, it means that this chaos might reign for years to come.

“But Aaron,” you might say, “what if Thomas steps down, too? Doesn’t that eliminate the problem?” Except he won’t. First, as a matter of law the argument that he should disqualify himself fails and really is the kind of thing that only Weiners think. The views of a judge’s wife are not imputed to the husband (or vice versa), and the payments she has received from the heritage foundation is not considered a financial interest as that term is understood in the law. And the idea that the Democrats could impeach and remove Thomas for this is a pipe dream.

And I would add that it is more than a little hypocritical for liberals to push this weak argument for disqualification for Thomas, while walking right past the far more substantive argument in regards to Kagan.

So if she disqualifies herself, a 4-4 split is possible, and I consider that in some ways worse than the alternative: a narrow victory for Obamacare. I consider the chaos worse than a clean loss. But principle is principle.

Finally, please don’t reply to me that we knew how Kagan would rule before she was sworn in and her participation or non-participation in forming the defense strategy had nothing to do with it. No, we don’t know how they will rule. Judges appointed by Democrats have voted to strike down Obamacare, and judges appointed by Republicans have voted to uphold it. It used to be that “everyone knew” that Justices Kennedy and Souter would vote to overturn Roe v. Wade; instead they were instrumental in upholding it. To the extent that we have some idea how Thomas and Scalia and others will rule, it is because we can see clear patterns from prior rulings. And the fact that this is an unprecedented exercise of alleged commerce clause power should make anyone pause before declaring that they know how the liberal justices would rule. It is one thing to advocate for an expansive Federal Government, it is another thing entirely to argue that it should be practically limitless. The possibility that some justices might see Obamacare as infringing on the right to medical privacy underpinning the right to an abortion, as well as violating our right to boycott might make the more liberal justices rule in ways that might take the political liberals by surprise.

That is because there is a world of difference between a liberal judge and a liberal politician. Part of the culture of all judges is that they are trying to rule in a principled way—or at least to convince themselves that they are. Consider for instance FAIR v. Rumsfeld. In that case, a number of schools were receiving Department of Defense money and one of the strings attached to DOD money was that the schools had to allow military recruiters on campus. But then the schools argued that they should be allowed to exclude such military recruiters, but still keep the money, claiming that it was in effect a boycott of those recruiters because of “Don’t Ask, Don’t Tell.” One liberal lawyer I knew argued that this was a slam dunk in favor of the schools because it was the right to boycott, supposedly. But I pointed out that if the Supreme Court took the schools’ side, then this would imply that schools could also repudiate Title IX of the Civil Rights Act of 1964, which said that any private educational institution that received any federal money could not discriminate based on race or sex (among other things). The final decision was unanimous against the schools, because although the liberal justices were surely sympathetic to the schools’ cause, they recognized they could not rule this way without undermining the decisions upholding Title IX.

The amazing thing is many of the same liberals who took the boycotting schools’ side in that case, fail to notice that Obamacare effectively outlaws insurance company boycotts. And unlike FAIR v. Rumsfeld, the issue was not whether or not you lose federal funds. The issue with the mandate is whether the government would impose a fine on you for boycotting private companies. So if all of the insurance companies available to you offer abortion, or have investments in Isreal, or whatever ax you have to grind, and you don’t want to put your money in such companies, you will be fined. That kind of casual hypocrisy might be common in political liberalism (or political conservativism). It might be easy for a political liberal to say “my body my choice” on abortion but then suddenly argue that the government should have control over every other medical decision they might make when it comes to Obamacare. But judicial liberals try to avoid that kind of bald hypocrisy. And it is the job of conservative lawyers to show the liberals how their principles are abrogated if Obamacare is upheld.

And if we should ever get to the point where each Supreme Court justice is nothing but a cipher for the political positions of the President who appointed them, then that is the day on which we should abolish the Supreme Court. The whole idea of the Supreme Court is for it to be independent of the political branches, and if they fail to fulfill that function and become nothing more than an unrepresentative superlegislature, there is no point in keeping the institution around, anyway.

[Posted and authored by Aaron Worthing.]

162 Responses to ““Simply Amazing;” Elena Kagan Must Recuse Herself From the Obamacare Case”

  1. I can’t wait for the left’s shouts of “Clarence Thomas must recuse himself!” due to his wife’s stated position on the legislation, while they concurrently insist there is no evidence that shows Kagan’s conflict of interest… evidence that clearly shows Kagan’s involvement in the machinations behind ObamaCare and her bias towards it.

    ColonelHaiku (09a0f9)

  2. I’ll suggest a possible alternative: that Kagan purposely held aloof from Obamacare because she expected to be appointed to SCOTUS and wanted to make sure she could vote when the pertinent cases came up for hearing.

    JBS (38f6c3)

  3. She ‘must’ recuse herself? You and whose army? How many divisions do you have?

    She isn’t going to recuse herself. Time after time, you seem to forget that liberals don’t play by the same rules you play by. To them, the means are always justified by the end. What bothers you doesn’t bother them at all. And you give liberal judges too much credit: they decide, then they come up with the rationalization. If it means inventing new rights, so be it. If it means incorporating foreign law, so be it.

    She was appointed for three reasons and three reasons only: in order of priority, to vote the liberal line, to curry favor with Hispanic groups, and to curry favor with women. She wouldn’t have been picked had she not shown herself to be a reliable voice for the liberal view of the Constitution (there’s a reason she was picked instead of Ann Coulter). And being on the Court, she (unlike some supposed conservative-ish justices, isn’t going off the reservation).

    And that is why we can very well tell you we know how she’s going to vote. You can’t compare her to run of the mill judges who may have been appointed because of their connections to the home state Senator. She was appointed knowing that Obamacare was going to come before the Supreme Court, and while she may never have been asked directly how she would vote, I have no doubt that she made it very clear during her vetting that she would be a reliable vote on each and every issue that is near and dear to liberals. To stretch the point, would you argue that we would be wrong to say that she would never vote to overturn Roe-v-Wade?

    Even your FAIR example doesn’t work… and because of what you allude to. The liberals voted to uphold the law not because they thought it a good law, but because they realized the dangers to liberal dogma if they voted to overturn.

    steve (369bc6)

  4. ColonelHaiku: you’re right. Go to Jennifer Rubin’s blog where she suggested that Kagan recuse herself… the comments are running heavily along the lines of ‘if she does, then so too does Thomas’.

    steve (369bc6)

  5. JBS

    Check the timing. She was doing much of this at a point in time when Stevens had not announced his retirement. So unless she knew something we didn’t…?

    And i will add that it was no slam dunk that she would be nominated. Let’s not forget that Larry Tribe trashed her to the president at one point.

    Btw, for your reference, here’s an article about when Stevens announced his retirement:

    http://www.washingtonpost.com/wp-dyn/content/article/2010/04/09/AR2010040902312.html

    Aaron Worthing (e7d72e)

  6. Steve

    > Even your FAIR example doesn’t work… and because of what you allude to. The liberals voted to uphold the law not because they thought it a good law, but because they realized the dangers to liberal dogma if they voted to overturn.

    And there are dangers to liberal dogma if they uphold obamacare, too.

    Aaron Worthing (e7d72e)

  7. Frankly, I think that this is much ado about nothing…

    I predict a 6-3 decision (if not 7-2) striking down the mandate.

    Even Breyer would, I think, have a hard time getting past the idea that a) the government can force you to buy something and b) that NOT buying something is a form of economic activity.

    But most certainly, the recordings of oral arguments will be fascinating to hear.

    Scott Jacobs (d027b8)

  8. Judges must recuse themselves where they have expressed an opinion “concerning the merits of the particular case in controversy” while he/she “served in governmental employment.”

    None of the particular cases existed when Kagen was Solicitor General.

    That leaves the fallback — i.e., where judges must recuse themselves where their impartiality might reasonably be questioned. Obviously, there are stronger arguments there, but they fly against Thomas as well.

    Kman (5576bf)

  9. P.S. A prediction — even Scalia will uphold the mandate.

    Kman (5576bf)

  10. Aaron–she could reasonably expect that one or another justice would retire by mid 2011, and that she would probably be nominated. I presume she wouldn’t be aware that Tribe was trash talking her.

    And would be it far fetched to think she had an understanding with Obama on this subject?

    So the timing is not so central.

    JBS (38f6c3)

  11. JBS

    so your defense is that she planned to be derelict in her duties as SG in order to be able to sit on the case if a justice retires or dies by then (most of them leave the court feet first), and if she ends up being the nominee?

    that’s alot of ifs she was depending on…

    Aaron Worthing (e7d72e)

  12. Btw, Scott, Cspan has asked the SC to televise the hearings.

    But it won’t happen. Still i have mentioned before the very cool synched transcription thing going on at oyez. hopefully they will have that. and bluntly, i don’t think seeing it adds very much.

    but i do think that if the public has a right to see something, i.e. a court case, we should televise it.

    Aaron Worthing (e7d72e)

  13. Ah, Aaron. You see, that’s different. She is a wise Latina, I mean…

    Fact is, the Left doesn’t care when they agree with the legislation. What they don’t get is that pendulums swing. They set up precedents that they don’t want in the hands of the political enemies.

    Of course, hypocrisy doesn’t bother them, and the MSM covers for it.

    So we shall see.

    Simon Jester (c8876d)

  14. “I’ll suggest a possible alternative: that Kagan purposely held aloof from Obamacare because she expected to be appointed to SCOTUS”

    JBS – How does your theory fit the FOIA response exclusions outlined in Aaron’s post?

    daleyrocks (bf33e9)

  15. Of course she should recuse herself. It amazes me that this is even an issue.

    Rehnquist recused himself from the tapes case; that seems like the correct precedent to follow here.

    aphrael (5d993c)

  16. JBS sees conspiracy bunnies.

    Icy (aba449)

  17. 5-4, the individual mandate is struck down, but the rest of the law is allowed to stand. Then it will be up to Congress to re-tool the law to make it “workable” without the mandate in place.

    Icy (aba449)

  18. Oh, and the odds that Kagan will recuse herself are roughly equal to the odds of Rachel Maddow getting pregnant through natural means.

    Icy (aba449)

  19. He recused himself from Laird v. Tatum. the Pentagon surveillance case, but Judge Black did not recuse himself in a case where his law partner, Crampton Harris, argued a case, and had previously
    come to his defense when his Klan affiliation had been revealed.

    narciso (ef1619)

  20. Kagan won’t voluntarily recuse herself no matter how conclusive the case can be made it’s the only right thing to do. Logical and moral arguments are merely background noise when great issues are decided. Kagan is where she is expressly to uphold ObamaCare and she ain’t going anywhere.

    Politics is power and nothing short of overwhelming public opposition, with direct negative consequences for Democrat elections, has even a slim chance to move Kagan aside.

    I fully expect her to stay on the bench and to take the lead in defending the individual mandate.

    ropelight (5fceff)

  21. “5-4, the individual mandate is struck down, but the rest of the law is allowed to stand. Then it will be up to Congress to re-tool the law to make it “workable” without the mandate in place.”

    Icy – They made health insurance such a damn attractive and wide open business by specifying regulations like minimum loss ratios that businesses are just dying to get into it.

    daleyrocks (bf33e9)

  22. The case was Jewell Ridge Coal, nor did Black recuse himself from TCI v. Muscoda local, the year before.

    narciso (ef1619)

  23. daleyrocks, we’ll see what happens to elements such as “no turn-downs for pre-existing conditions” without the guaranteed presence of 200 million enrollees feeding the system.

    Icy (aba449)

  24. Greetings:

    I still can’t get past the idea that Justice Kagan has had to recuse herself from a third to a half of the Court’s workload yet, in the best liberal “equal pay for equal work” tradition will take her whole salary. Nice work if you can get.

    “Ethics” may not mean what you think it means to those people.

    11B40 (187ba7)

  25. ZOMFGWTF Ginni Thomas and Bush !!!!!!!!

    JD (065755)

  26. 11B40 – it’s normal and expected that when a sitting SG is named to the bench, they will have to recuse themselves from a lot of cases for the first several years. Same thing happened when Rehnquist and Marshall were appoointed.

    aphrael (5d993c)

  27. A good lawyer is perfectly capable of being a defense lawyer on monday and a prosecutor on Tuesday. Unless we have evidence to the contrary there is no reason to believe in principle that Kagan isn’t capable of having a judicial temperament. As pointed out by others above, the Supreme Court isn’t bound by precedent and the justices personal political and ideological positions won’t blind them to the dangers to their beliefs as Aaron pointed out by future courts and congresses and administrations. The bill is so badly written and so muddled in thinking it would not surprise me that the court tosses the whole thing out 9-0 with the liberals on the court all but telling Congress on how to write the bill appropriately in the opinions.

    cubanbob (ad2274)

  28. It is not entirely clear to me how Kagan’s rooting interest in the passage of Obamacare is different in principle from Sandra Day O’Connor’s statements just before the 2000 election that she would not want to retire from the Supreme Court if a Democrat was elected and could appoint her successor, and then sitting on Bush vs. Gore and not recusing herself from that case.

    hmonrdick (5eb75e)

  29. Step away from the crack pipe

    JD (065755)

  30. hmon

    well, there is the difference in that O’Connor may not have actually said it. i mean there is that.

    Aaron Worthing (e7d72e)

  31. cuban

    we aren’t talking about being an advocate, we are talking about being a judge.

    Aaron Worthing (e7d72e)

  32. “…that NOT buying something is a form of economic activity…”

    A decision along that line would demand an overturning of Wickard, which is not a bad thing, and is a positive that we could hope for in the result.

    AD-RtR/OS! (889f1e)

  33. 18- My feelings exactly!
    Though the facts amply demonstrate that Kagan should recuse herself from this matter, the political facts are that she won’t, marking another instance of Leftist “Do as I say, not as I do”.

    AD-RtR/OS! (889f1e)

  34. Why mess up the ‘narrative’ with annoying facts, Aaron. One can’t forget Judge Kessler’s facepalmworthy opinion, where ‘thinking was an economic activity’

    narciso (ef1619)

  35. AD

    on wickard, you could easily knock down the mandate without overruling it. you could go to the inactivity/activity distinction. wickard was in the commercial activity of growing wheat. just because he wasn’t selling it doesn’t mean it wasn’t a commercial activity, becuase he was creating a commodity. so that activity can be regulated.

    by contrast, sitting on your butt is not economic activity.

    fwiw…

    Aaron Worthing (e7d72e)

  36. “I hear they have the votes, Larry!! Simply amazing,” Kagan said to Tribe in one of the emails.

    All that is missing is the OMG. But it is not reasonable to think that she was in any way involved. Especially since she was directing Kaytal to coordinate a defense of the law that she was cheerleading. Because the SG would never cheerlead for a law that she thought was unconstitutional.

    JD (065755)

  37. Thanks for driving by, hmonrdick!

    Icy (aba449)

  38. “Because the SG would never cheerlead for a law that she thought was unconstitutional.”

    But having a thought or opinion about it is not a basis for recusal.

    mays (39a3b9)

  39. AW, how is growing wheat a “commercial activity”, if one is not offering it for sale.

    Hell, I could grow wheat in my backyard – all 800-sq.ft. of it.
    Would that comprise “economic activity”, or just “garden variety” foolishness?

    Wickard was decided wrongly in response to FDR’s threat to the Court, and it is long past time that the Supremes set this farce straight just as they corrected Plessy with Brown.

    AD-RtR/OS! (889f1e)

  40. The magic word is “bias”, if not “prejudice”…

    mojo (8096f2)

  41. AD

    i am not saying it is a strong argument, but i would give good odds that if they strike it down, it will say something like that.

    Aaron Worthing (e7d72e)

  42. Even if Kagan recuses herself, opponents of ObamaCare still need five votes to overturn it since a 4-4 tie would simply take us back to the divided Circuit Court rulings, right? I know that the liberal dream (as related by her ex-professor and colleage Lawrence Tribe) is that Justice Kagan proves to be such a brilliant legal mind with such airtight arguments that Anthony Kennedy will see the light and vote with her to uphold the individual mandate, but I think that is simply Tribe overestimating her abilities. Might it not be better to have Kagan participate and be on the losing end of a 5-4 vote, then have her recuse herself and end up having Obamacare lose on a 5-3 vote?

    And I am with Scott in hoping that Breyer will turn a gimlet eye on the individual mandate, but I think in the end he will do his duty as a liberal and find some very narrowly tailored grounds on which to uphold it. It would surprise me if his case ends up having four or five separate opinions among the nine (or eight, or even seven?) justices.

    JVW (4d72aa)

  43. JD is correct. While she may have anticipated a constitutional challenge to the law (one does not need to be Kreskin to forsee that) she certainly thought from the beginning that the law, as written, is constitutional.

    And, therefore, has a zero percent chance of changing her mind now. What remains to be seen is the contortions and distortions she will employ within her — hopefully, dissenting — opinion in order to justify the mandate.

    One imagines a invented-out-of-whole-cloth constitutional “right to health care” along the lines of “a woman’s right to privacy” and the California Constitution’s (it’s invisible, but if a judge says it’s there then it’s there!) “Constitutional right to marry”.

    Oh, wait . . . that really isn’t the same principle, is it?

    Oh well, don’t worry — she will think of something.

    Icy (aba449)

  44. Icy, I think the standard you’re laying out is a difficult one. If the issue is “she certainly thought that the law, as written, is constitutional”, well, it’s pretty certain that Thomas thinks the law, as written, is unconstitutional. I don’t think either of those is grounds for recusal.

    What I think *is* grounds for recusal is that she used to be the lawyer for one of the sides in the case, and she is intimately familiar with the internal legal work product available to that side. That’s *generally* considered grounds for recusal at any level of court.

    aphrael (5d993c)

  45. The problem for me isn’t that the liberal jurist thought National Romneycare was constitutional or amazing.

    It’s 1) she was apparently dishonest about this involvement in her confirmation process and 2) it’s unfair to present a case to a judge who was also a lawyer for the other side

    Would Kagan demand someone be recused if she were presenting a case under this circumstance? Of course she would.

    The Thomas stuff is, to my view, proactive muddying the waters by those who see this problem for Kagan (I am certainly not talking about Aphrael, of course).

    Dustin (cb3719)

  46. Aphrael – there is evidence that she was cheerleading this, and working to coordinate a defense of same. Now, you are likely correct about Thomas, but it is a conclusion not borne out by actual evidence.

    JD (065755)

  47. What I think *is* grounds for recusal is that she used to be the lawyer for one of the sides in the case, and she is intimately familiar with the internal legal work product available to that side. That’s *generally* considered grounds for recusal at any level of court.
    Comment by aphrael — 11/16/2011 @ 11:05 am

    — Agreed; however, neither will she recuse herself nor will the petitioner(s) for the attorneys general bringing the case ask for it. Politics is ever present.

    Icy (aba449)

  48. AW, I am encouraged that they Court has started to walk-back many of the excesses that can be traced to Wickard and other post-Packing decisions of the Late-30’s/Early-40’s, and can only hope that Thomas can convince four others that ObamaCare is the vehicle to overturn Wickard and return some sense of sanity to the reach of Congress.
    And, without the mandate, the Act falls apart due to the economic displacement it will cause;
    and that doesn’t even talk about the Medicaid impositions against the States,
    which very well could be an easier case to make for the unconstitutionality of the entire Act.

    But, I really would like to see Wickard overturned; next stop Slaughterhouse.
    Stare Decisis is not a suicide pact or written in stone, as even J.Kennedy has noted.

    AD-RtR/OS! (889f1e)

  49. Dustin: I should hope not; I see the problem for Kagan, for one thing. :) I’m bringing up Thomas merely to deflect a particular kind of anti-Kagan argument that I think is unhelpful.

    The issue isn’t that she had a prejudgment. The issue is that she was the attorney for one of the parties. :)

    AD-Rtr/OS: I find the medicaid thing interesting. It’s been a generation since the issue of what strings the feds can attach to federal money has been revisited.

    ISTM that it’s very hard to draw a line between ‘no strings’ and ‘any strings’, and it’s even harder to find the formation of that line in the constitutional text. Still, I wouldn’t be surprised to see the court do it; on the other hand, I would be surprised to see constitutional conservatives like it.

    aphrael (5d993c)

  50. BTW, isn’t it about time that this thread and the OWS thread(s) merge? To wit . . .

    OCCUPY the SUPREME COURT!!!

    After all, OWSers are all for the individual mandate, right? (Or is it “universal health care” that they’re after? Never mind; they’re never quite sure, themselves, about what they stand for, so . . . close enough).

    So, let’s pack up the tents and move this show over to The D.C., babies!

    One thing, though: There can’t be any African-Americans in the drum circle, yo! Don’t want any of the racist leftists in the group to get the impression that Justice Thomas has some supporters out there. That simply will not do!

    Oh, and the less said about which ‘side’ Ginsburg is on, the better.

    Icy (aba449)

  51. AD

    and they will be hearing that medicaid issue, too.

    Aaron Worthing (e7d72e)

  52. Dustin: I should hope not; I see the problem for Kagan, for one thing.

    Right. Just to be clear, I wasn’t being sarcastic. I agree with you that knowing how someone would rule doesn’t mean anything (actually, I kinda think most of these matters should be highly predictable), but I do think there’s been a proactive campaign to demand Thomas recuse that is rooted largely in awareness that Kagan won’t but should.

    I don’t think there’s a very good way to have an independent judiciary that works ethically other than simply confirming only highly ethical, non politically motivated, jurists. And when the latter happens, the system breaks. If we start impeaching justices, it’s going to get out of hand, IMO.

    Dustin (cb3719)

  53. Dustin

    honestly, i don’t think the campaign against thomas is that self-aware. it is more like they are preparing the battlespace in case they lose the case to be able to claim the deck was stacked.

    Aaron Worthing (e7d72e)

  54. aph, “constitutional conservatives” would love to have the Supremes find that the coercion of Congress has no justification in the text of the Constitution, and is just another over-reach by that body.

    AD-RtR/OS! (889f1e)

  55. AD-Rtr/OS: but they won’t do that. If they don’t uphold on that point, they’ll come up with some sort of half-loaf holding that maintains that it’s ok for the feds to condition highway funding on raising the drinking age (the big issue the last time this was discussed) but not ok for the medicaid tying at issue here.

    That kind of hand-waving invented distinction is precisely the kind of thing i expect cosntitutional conservatives to loathe.

    aphrael (5d993c)

  56. honestly, i don’t think the campaign against thomas is that self-aware.

    I definitely think the Weiner ramblings about Thomas were that sophisticated.

    Perhaps we’re both right. A lot of people were just generating a scapegoat if they lose their precious entitlement, but I think some were acutely aware, when counting a potential 4-4 Court ruling on a Circuit overturning Obamacare that Kagan can’t recuse, but obviously should.

    Dustin (cb3719)

  57. Dustin: aye, I didn’t take you as being sarcastic, and I should have appended a smiley to make that clear. :)

    I agree with respect to impeachment. Luckily, precedent is that it’s an insanely high bar; I don’t think it will happen.

    On a vaguely related subject, being from a state with nonpartisan judicial elections, I found the party lines on the NY local judge elections to be bizarre.

    aphrael (5d993c)

  58. AW, isn’t it interesting about the Medicaid issue, in that it wasn’t an issue AFAIK in any of the cases at issue, but was added by the Court in their response for certiorari?

    This would seem to be another indicator that at least four members want to rein-in Congress’ over-reaching?

    AD-RtR/OS! (889f1e)

  59. That kind of hand-waving invented distinction is precisely the kind of thing i expect cosntitutional conservatives to loathe.

    Agreed!
    It would be another in a long line of “political decisions” that the Court shouldn’t be making;
    disregarding the old truth that when you attempt to stand in the middle of the road, you’ll be run over by traffic in both directions.

    AD-RtR/OS! (889f1e)

  60. kman

    > Judges must recuse themselves where they have expressed an opinion “concerning the merits of the particular case in controversy” while he/she “served in governmental employment.”

    Lol, so you think that rule means that if she says that Obamacare is 100% constitutional, or just the mandate is, she has not commented on the merits of any of the cases challenging the constitutionality of the mandate?

    i mean you are like a bigot who says “all black people are stupid,” who then says, “but I didn’t say anything bad about Denzel Washington!” Give me a break.

    And you and i both know that even you don’t believe the bullsh– you are flinging. You knew the argument was bogus when you made it.

    Aaron Worthing (e7d72e)

  61. Dustin

    well either that or they just hate thomas for being a conservative who happened to be black. That is evergreen as a plausible explanation.

    Aaron Worthing (e7d72e)

  62. well either that or they just hate thomas for being a conservative who happened happens to be black.

    FTFY!

    AD-RtR/OS! (889f1e)

  63. AD

    true. thomas is not past tense, thank the lord.

    Aaron Worthing (e7d72e)

  64. Aaron, I don’t know why you’re getting so upset with Kman.

    After all, he’s your friend!

    Icy (aba449)

  65. Icy

    dude… lay off the personal insults. its wrong to suggest i would be the kind of person who has so little character as to consider kman a worthy friend.

    Aaron Worthing (e7d72e)

  66. I must admit, that from the perspective of a “constitutional conservative”,
    I await the ruling on this case with the same sense of ying and yang that I had with Heller and McDonald
    torn between wishing for a return to sanity, and dreading the consequences of an adverse ruling.
    I guess it must be a “Country Class/Ruling Class” thing.

    AD-RtR/OS! (889f1e)

  67. So, AW, is he an “unworthy” friend?

    AD-RtR/OS! (889f1e)

  68. well either that or they just hate thomas for being a conservative who happened to be black.

    I believe this.

    I sincerely think Thomas has proven to be one of the best Justices in the nation’s history. If he were white, he would not be considered an airhead moron the way Reid and Biden like to suggest.

    Of course, his nature appeals to my sensibilities. I don’t want a slick performer making his points like Socrates during oral arguments. I want someone who proves himself with a solid record of making the right call, even when the pressure mounts against him. I also love the man’s amazing background, and am mystified he’s not used as a positive example.

    Off topic, I guess, but the guy gets a lot of flack that he wouldn’t if he looked the way some think a Republican is supposed to look.

    Dustin (cb3719)

  69. None of the particular cases existed when Kagen was Solicitor General.

    This is quite hilarious.

    Kman is an actual lawyer too.

    Sure, he’s only saying the same thing he always does… the opposite of whatever Aaron says, but somehow this guy is licensed to practice law and doesn’t see a problem with arguing a case to a judge who represented that matter as your opponent’s attorney.

    Dustin (cb3719)

  70. Dustin: I think he fails to be one of the ‘best justices’ because he is content, largely, to dissent, rather than to persuade his colleagues.

    I think he thinks history will vindicate him, in which case he’ll look a lot like the first Justice Harlan. But wouldn’t it be more effective to try to fight the fight now rather than laying the groundwork for the fight tomorrow?

    (And if, as i think, history will not vindicate him, then history will see him as a solo lunatic howling in the wind).

    aphrael (5d993c)

  71. Dustin: to be fair, kman is saying that Kagan didn’t litigate this actual matter. So it’s a problem with arguing a case to a judge who represented a related matter as your opponent’s attorney.

    I’d still call for recusal, but I think there’s enough room between the two to wedge a scalpel in.

    aphrael (5d993c)

  72. kmart demonstrates the need for a suspension of legal instruction until the supply of lawyers meets the demand for same – and some serious post BAR-acceptance legal education/fitness review.

    AD-RtR/OS! (889f1e)

  73. aph, since J.Thomas has written a few Majority Opinions, does that not demonstrate his ability to persuade?

    AD-RtR/OS! (889f1e)

  74. Ad

    you are giving too much credit to kman’s honestly.

    he knew the argument was crap when he said it.

    Aaron Worthing (e7d72e)

  75. kmart has honesty?
    When did that happen?

    AD-RtR/OS! (889f1e)

  76. P.S. A prediction — even Scalia will uphold the mandate.
    Comment by Kman — 11/16/2011 @ 8:54 am

    — How much money are you willing to wager, and to which charity will you donate it?

    Icy (aba449)

  77. Dustin: I think he fails to be one of the ‘best justices’ because he is content, largely, to dissent, rather than to persuade his colleagues.

    I understand this notion, but he isn’t an advocate.

    He simply applies the law from a completely understandable and, to my view, correct POV. He does it even when the others have strayed to an extreme away from where this path takes Thomas. He has strayed a couple of times, but he’s very predictable.

    If folks want something unconstitution, they have to amend the constitution to get it. Otherwise, Thomas is just going to apply the law the same way he always does.

    That he’s often isolated in his reasoning is a sign of the times. I personally think you’re right that history will not praise the guy. But he’s fulfilling his role very well… much better than the others who often have some kind of axe to grind.

    In fact, I praise Thomas because there’s little hope history will vindicate him.

    I don’t think Thomas is content with dissenting. He simply realizes much of his argument is very well understood and ignored rather than honestly rejected.

    Dustin: to be fair, kman is saying that Kagan didn’t litigate this actual matter.

    She definitely provided the Obama administration with legal work on this matter. Litigate, no. Crafting the obvious coming litigation? I think that’s a yes. She will be hearing her own arguments, but from the bench.

    Dustin (cb3719)

  78. And Aaron has a point. Thomas has won the day sometimes.

    But I respect him the most for how he sticks to the law, even when it’s hopeless.

    I do hope he writes the majority opinion overturning the commerce clause God Mode policies. But I have zero faith he will do so. I even suspect the next GOP president, even if it’s not Romney, will nominate at least one jurist who moves to the left. We got lucky with Bush’s picks, IMO.

    Dustin (cb3719)

  79. We got lucky because we revolted over Miers,
    and held his feet to a very large fire until he “got his head straight”.

    AD-RtR/OS! (889f1e)

  80. Yup.

    Dustin (cb3719)

  81. Aaron:

    The mistake you make is an assumption (key word there) that Kagen knew at the time (key phrase there) that the right would rise up and flood the court with legal challenges to the individual mandate.

    Of course, the individual mandate was a GOP idea, and advocated by the GOP for about 20 years. I don’t think the White House was too concerned about LEGAL opposition to the mandate.

    And even if they were, the executive branch is crawling with lawyers in any number of “offices”. There’s not just the Solicitor’s Office — there is the Attorney General, the Office of Legislative Affairs, the Domestic Policy Council, etc., all of whom were more likely to weigh in on the constitutionality of “Obamacare”. In fact, those offices exist specifically FOR providing legal counsel to the president on pending legislation.

    It’s wishful thinking that Kagen was front and center on Obamacare in its developmental stages. It wasn’t in her job description. (Not to say she wasn’t, but in the absence of actual evidence, you’ve really got nothing to hang your hat on).

    [Released from moderation because it is yet another example of how Kman writes these missives without the most minimal research–i.e. reading the pieces I have cited. I am not assuming anything. We know for a fact that they were holding meetings about litigation strategy on the assumption that the law and particularly the mandate would be challenged from the beginning. Kagan attended some of those meetings, but claims she didn’t contribute. Everyone knew that a legal challenge was coming to the mandate. Indeed, Kman’s argument not only ignores those inconvenient facts, but he is also implicitly arguing that Kagan was incompetent (as well as all the other lawyers in her office), because any idiot could have seen at least some challenge to the mandate coming. –Aaron]

    Kman (5576bf)

  82. Following the lead of Fox’s legal ‘experts’ I see.

    pitiful

    Spartacvs (1c11b2)

  83. Oh dear Lord. Spurtycuss is back. Hilarity ensues.

    JD (0c4797)

  84. Did he really just link mediamatterz?

    JD (0c4797)

  85. It is all he knows.

    AD-RtR/OS! (889f1e)

  86. So, maybe Mediamatters photo-shopped the Fox News graphic? Is that the argument you are going with?

    Spartacvs (1c11b2)

  87. spurty

    if media matters said that water is wet and gravity pulled downward, i would get independent verification.

    Aaron Worthing (73a7ea)

  88. There’s a Fox graphic Aaron.

    Either Mediamatters photo-shopped it or it’s real.

    So which is it?

    Spartacvs (1c11b2)

  89. I’m surprised spurtypuss hasn’t turned to stone just viewing that evil Fox graphic.

    AD-RtR/OS! (889f1e)

  90. lol US Constitution article 28. oh Fox. Wonder if they explained ‘merits of the particular case in controversy’

    mays (3fbb18)

  91. The link to Media Matters is hilarious. It basically amounts to either a typo or a lack of specificity. They cite US Code correctly, but because they say US Constitution, Media Matters goes on and on about how there isn’t a section 455 of the constitution, they bore their readers to tears actually counting the sections in the constitution before pathetically admitting the obvious, that Fox was citing US Code and just made a minor blunder.

    The idiot commenters insist that this proves that conservatives think this passage they quote is in the US Constitution.

    Never do they seriously consider what the law is saying, and how that applies to Kagan’s behavior. Never do they get to the serious point here that it’s obviously wrong, and an ethical jurist would have admitted this stuff during confirmation as well as recused herself now.

    No, it’s just a diatribe about a sheer accident. That’s the best they’ve got.

    These are the kinds of people run on zero reasoning. It’s all ‘my team rules, your team sucks!’

    Dustin (cb3719)

  92. Either Mediamatters photo-shopped it or it’s real.

    So which is it?

    It’s a real goof. Big deal.

    The law is still correct. Someone obviously cited USC for US Code and someone else interpreted that as US Constitution accidentally.

    It’s worth a minor laugh, but a long diatribe? Not really. That’s pathetic, IMO. It’s also entirely avoiding the real argument.

    Dustin (cb3719)

  93. The real argument, is that this is yet another data point to be added to the long list of instances of Fox deliberately misleading its viewers.

    Spartacvs (1c11b2)

  94. I don’t see how the email matters. The email shows that she supports the legislation, that she thinks its passage is a good thing, but it tells us nothing about her opinion on the legal questions involved. She may never have given the issue much thought. She may even believe it to be unconstitutional, but still liked it and hoped the courts would uphold it. I don’t see why she couldn’t support laws she believed to be unconstitutional.

    As for why she would keep herself out of the loop on the legislation, the obvious answer is as JBS suggested in comment #2: she was hoping to be appointed to the Supreme Court, and therefore deliberately stayed out of any discussion that would prevent her from sitting on this question should it ever come up. You may think she was being rather optimistic, but it all worked out exactly like that, didn’t it? So I find the claim that she stayed out of this question plausible in itself.

    The question is, of course, not whether it’s plausible but whether it’s actually true. Just because she could have saved herself for marriage, so to speak, doesn’t mean she did. And that’s where those FOI results come in. If she wasn’t involved in the White House’s legal analysis of the bill’s constitutionality, and preparing for any challenge, then the claims of b(5) exemptions would appear to be fraudulent. If they’re not fraudulent, then Kagan is lying. If there’s any daylight between those two options, I can’t see it.

    Milhouse (ea66e3)

  95. “Deliberately misleading viewers”?! A graphic artist made a stupid assumption about what USC stands for, that’s all. It’s not as if anybody relied on that graphic for anything.

    Milhouse (ea66e3)

  96. What does Fox’s graphic mistake have to do with this post? Did AW cite the constitution in the manner in which Fox did?

    JD (318f81)

  97. Milhouse is right that this is clearly an accident. If you seriously think Fox was trying to, or able, to so fool their viewers, that says more about you than them.

    JD’s also right that this is a sheer deflection from a guy who sees an argument against Kagan and runs to Media Matters because he can’t hold his own.

    Dustin (cb3719)

  98. It only matters in that it is a vehicle for a Richard Cranium to use to hi-jack a blog post.

    AD-RtR/OS! (889f1e)

  99. There has been a flurry of drive-bys today. Spurty, mays. Several others. This topic arouses them.

    JD (318f81)

  100. You think it’s bad now, just think what it will be like on either side of Orals, and in the lead-up to the Opinion?

    AD-RtR/OS! (889f1e)

  101. Did AW cite the constitution in the manner in which Fox did?

    No, and nor did anyone else. In fact, the only person in this thread to cite the text on that graphic was…kmart!

    Milhouse (ea66e3)

  102. cuban

    we aren’t talking about being an advocate, we are talking about being a judge.

    Comment by Aaron Worthing — 11/16/2011 @ 10:22 am

    Aaron absent any evidence that she lacks a judicial temperament I am not going to impugn her character.As a lawyer you know perfectly well that a good lawyer and one with character can be a prosecutor on Monday, a defense lawyer on Tuesday and the the judge on Wednesday. As the SG she was the Administration’s lawyer. Being on the court is another story. Now if she had some financial interest in this then yes she should recuse herself if only because of the optics. And as you said earlier the liberals on the courtl may very well take a longer view and rule against the bill precisely because the powers given to the government could be used against them in the future by an Administration and Congress they are ideologically opposed to. As you said in so many words, the door swings both ways. I’m to the right of Genghis Khan and proud of it and proudly partisan. But I also live in a diverse country and I am not willing to to ascribe evil motives to people that disagree with my views unless there evidence of that.

    cubanbob (ad2274)

  103. And Sparticles breaks like the wind, again!

    Icy (aba449)

  104. Spartesticles

    > So which is it?

    Again, I don’t trust them to tell me that the sky is blue on a sunny day without independent verification. I have dealt with them before, and they are known to lie when the truth can be easily verified.

    And i have yet to see how this connects to my discussion. at worst non-lawyers mislabeled a section of the US code as part of the constitution. So? And?

    Aaron Worthing (73a7ea)

  105. Cuban

    > Aaron absent any evidence that she lacks a judicial temperament I am not going to impugn her character.

    You are the one who said she could switch from prosecution to defense. Well, sorry, i don’t think it is as simple to switch from advocate to neutral arbiter. And her dishonesty about her role in developing the defense isn’t helping matters.

    this is just what happens when solicitor generals become supreme court justices. they have to step out of alot of cases.

    Aaron Worthing (73a7ea)

  106. this is just what happens when solicitor generals become supreme court justices.

    Yeah, it’s not exactly like this is some new crazy scheme to get the poor Kagan off the bench. This is old news. There’s a reason Kagan attempted to deny her role with Obamacare.

    Dustin (cb3719)

  107. Aaron I am not going to argue with you back and forth over the matter. And certainly as a layman I am not qualified to challenge you on legal and procedural grounds. Maybe I am naive and pollyanish, I would like to believe, I want to believe that when someone is elevated to the position of a federal judge, especially a Supreme Court judge when that individual takes the oath of office and dons the robe in the courtroom that they are elevated to a higher plane and are capable to the extent a human being can be a neutral arbiter in the context of the facts and the law.

    Surely as an attorney you are a vigorous advocate for your client but you would do you client a disservice if you could not analyze coldly and dispassionately the opposing counsel’s arguments and facts and advise your clients on the opposing sides strengths and weaknesses and likelihood of success. And to do that you are no doubt capable of making the other side’s case. How else can you be an effective advocate for you client?

    As far as I know, most judges were at some point practicing attorneys. The SG is an attorney for the government. Many a prosecutor has gone from being the DA to being the defense attorney. And many of those have gone on to being a judge and have been quite capable of handing down harsh sentences.

    As a practical matter unless she chooses to recuse herself, there isn’t really anything anyone can do about it. Should she recuse herself? Probably.Will she? Probably not. Character assignation is a property largely of the left. I don’t think principled conservatives and libertarians should lower themselves to the left’s position. So absent a smoking gun, or real credible evidence of her inability to be neutral I prefer to give her a pass lest forcing her to recuse brings about a storm that results in however wrongly and unfairly the forcible recusal of a judge like Justice Thomas.

    I agree with you that in a different setting and context she should remove herself but that isn’t going to happen as their is no higher court of appeal and I agree with you that the liberals on the court will take the long view that giving the government this much power will eventually come back to haunt them when the pendulum swings as it inevitably will . Otherwise the court will become as you said a brothel and not worthy of existing.

    No matter what the court rules, the safest and wisest thing for the people to do is to vote for a party that adheres to the principals of a more restrained government and that judges should read the constitution as a contract and not see things that are not there and cannot be directly inferred from the text.

    That said when even a commenter normally as to the left as aphareal is as noted by his/her comment concerned about Kagan’s recusal I see that as if she is one of the judges ruling on the case and it goes the way you and I believe it should go then that would greatly defuse the hostility by the left that would bring disrespect to the court a decision that upholds the 11th circuit’s ruling and better still over turns that law completely.

    cubanbob (ad2274)

  108. Cuban

    well much of what you say is true. a good lawyer knows how to see both sides (although lawyers who have only been criminal defense attorneys are very bad at that, as a rule), and lawyers also know that to be more persuasive you don’t take an extreme position, but instead take a moderate one that takes some of the other side’s considerations into question.

    I have no doubt that in general Kagan can make that shift easily.

    But when she is involved in a particular case–and indeed seems to have lied about that involvement–then in that particular case she should recuse herself.

    Aaron Worthing (e7d72e)

  109. Aaron

    A Supreme Court Justice lying about involvement in a case – could that be far fetched grounds for impeachment procedings?

    EricPWJohnson (d84fb0)

  110. Can you imagine the MFM coverage if it was Roberts instead of Kagan? How they would cover the lack of disclosure on the FOIA requests? I know, that is just silly talk.

    JD (05e5c6)

  111. Eric

    i would say it is unlikely to.

    Aaron Worthing (e7d72e)

  112. aaron

    Oh I think a msg could be sent – naturally I like Perry’s idea of limiting the judiciary to 18 years (I think thas too long 10 to 15 years seems more appropriate)

    the house has to act, if its proven she is lying about her involvment, if its true, not just another internet rumor

    EricPWJohnson (d84fb0)

  113. Eric

    i will tell you the truth. i think the court needs to be fixed, but i am not sure how to do it. I do think it is interesting that he is not suggesting what texas does–which is have the judges run for the office like any other position.

    I suspect there is no magic bullet to solve the problems i see in the modern judiciary. it is often said that the constitution is just words on a paper, that it requires human beings to turn those words into a reality. so while written protections and checks and balances are important, what really matters is picking people of the appropriate character.

    Aaron Worthing (e7d72e)

  114. As a lawyer you know perfectly well that a good lawyer and one with character can be a prosecutor on Monday, a defense lawyer on Tuesday and the the judge on Wednesday

    Not on the same case. Absolutely not.

    Milhouse (ea66e3)

  115. How to fix the Supreme Court: 18-year terms, one appointed every two years.

    Milhouse (ea66e3)

  116. But when she is involved in a particular case–and indeed seems to have lied about that involvement–then in that particular case she should recuse herself.

    Comment by Aaron Worthing — 11/17/2011 @ 5:15 am

    As a practical matter how does she get removed from hearing the case if she does not voluntarily decide to do so?

    cubanbob (ad2274)

  117. The day Kagan recuses herself is the day Charles Johnson looks good in a mankini.

    DohBiden (ef98f0)

  118. Perhaps the SCOTUS Can act to ban the licking of Rick Perry’s a-hole in public.

    Icy (384571)

  119. Perhaps the SCOTUS can ban the licking of Obama’s hairy mangina in public.

    DohBiden (ef98f0)

  120. cuban

    you mean you didn’t listen to my awesome discussion on john smart’s show? :-)

    the answer is there is nothing anyone can do if she refuses to remove herself, except impeachment. and a fat chance of that happening. but that doesn’t change my opinion that she should recuse herself and frankly if i was in her shoes, i would.

    Aaron Worthing (e7d72e)

  121. daleyrocks, we’ll see what happens to elements such as “no turn-downs for pre-existing conditions” without the guaranteed presence of 200 million enrollees feeding the system.

    How does that work for auto insurance?

    Michael Ejercito (64388b)

  122. Can you imagine the MFM coverage if it was Roberts instead of Kagan? How they would cover the lack of disclosure on the FOIA requests? I know, that is just silly talk.

    Comment by JD — 11/17/2011 @ 6:30 am

    It would be quite a show.

    I mean, they are angry about Clarence Thomas’s SPOUSE being an activist. Imagine if it were Thomas personally being the activist… no wait, not an activist, paid to write the argument opposing Obamacare that is presented in Court. That’s where Kagan’s at.

    Dustin (cb3719)

  123. michael

    > How does that work for auto insurance?

    Well, try this sometime. Call them up and say, “hey, i just got in an accident. so i would like to buy insurance in order to cover the accident I just had. Yeah and its a bad one, i just smashed a busload of special ed children on the way to school, we have white canes all over the highway, its a mess. i figure I am going to need at least $100,000 of coverage to deal with it. So will you sell me a policy for say, $500 to cover this accident i just had?”

    Aaron Worthing (e7d72e)

  124. we have white canes all over the highway, its a mess.

    Your mind has been twisted from all those years of South Park. :)

    But anyway, what happens if Obamacare’s mandate goes away? Does the bar on preexisting conditions remain? If so, I’m going to learn how to make my own penicillin.

    Dustin (cb3719)

  125. It will.

    Anyways white canes on highways is racist………Al ”the closeted homo” sharpton said it is so.

    DohBiden (ef98f0)

  126. Btw, check out #81. A Kman patented criticism that demonstrates that he has no factual basis for his disagreement with me, and is being just reflexively disagreeable.

    Let’s all point our fingers at my stalker and laugh at him.

    Aaron Worthing (e7d72e)

  127. …………………./´¯/)
    ………………..,/¯../
    ………………./…./
    …………./´¯/’…’/´¯¯`·¸
    ………./’/…/…./……./¨¯\
    ……..(‘(…´…´…. ¯~/’…’)
    ………\……………..’…../
    ……….”…\………. _.·´
    …………\…………..(
    …………..\………….\

    Icy (384571)

  128. I was pointing “up” at #81

    Icy (384571)

  129. Well, try this sometime. Call them up and say, “hey, i just got in an accident. so i would like to buy insurance in order to cover the accident I just had. Yeah and its a bad one, i just smashed a busload of special ed children on the way to school, we have white canes all over the highway, its a mess. i figure I am going to need at least $100,000 of coverage to deal with it. So will you sell me a policy for say, $500 to cover this accident i just had?”

    My guess is that the premiums offered would be very high.

    Similarly, when health insurance companies offer policies to persons with pre-existing conditions, the premium would be higher than those without the conditions.

    Per your auto insurance example, would not a more apt comparison be insuring a driver with multiple pre-existing drunk driving convictions?

    Michael Ejercito (64388b)

  130. Michael Ejercito:

    Per your auto insurance example, would not a more apt comparison be insuring a driver with multiple pre-existing drunk driving convictions?

    I don’t think so. ObamaCare requires that premiums be charged based on the insured’s income, not based on risks or events. So everyone’s premiums will go up, not just a pool of bad risks.

    DRJ (a83b8b)

  131. michael

    i don’t think your example is necessarily more apt. i mean how is a hundred thousand dollars of accident liability different than having a cancer that will cost just as much to treat and trying to get insurance for it.

    The whole idea of insurance is to protect you in case something bad has happened to you. once that possibility is a reality, its no longer insurance you’re asking for, but a payment plan.

    Aaron Worthing (e7d72e)

  132. ObamaCare requires that premiums be charged based on the insured’s income, not based on risks or events.

    That is stupid.

    Imagine if auto insurance had a similar regulation. Poor persons with multiple drunk driving convictions would be able to get lower premiums that rich persons with perfect driving records.

    Why does no one in the network print or broadcast media point out this incongruity?

    Michael Ejercito (64388b)

  133. Welcome to the media supported Obama-Pelosi-Reid’s vision for America, Michael.

    DRJ (a83b8b)

  134. Imagine if auto insurance had a similar regulation. Poor persons with multiple drunk driving convictions would be able to get lower premiums that rich persons with perfect driving records.

    You don’t even need the metaphor.

    Chain smoking promiscuous drug addicts who eat McDonalds every day will be getting the same rate as a 20 year old man who exercises and has virtually zero health risk, if they have the same income level?

    That’s socialism.

    Dustin (cb3719)

  135. Chain smoking promiscuous drug addicts who eat McDonalds every day will be getting the same rate as a 20 year old man who exercises and has virtually zero health risk, if they have the same income level?

    That’s socialism.

    And yet the netowrk print and broadcast media does not point out this incongruity?

    Michael Ejercito (64388b)

  136. In fact, they need as many healthy low risk people who frankly, don’t need comprehensive health insurance, to be forced into ‘the pool’ specifically because this lowers the cost for those who do need extensive coverage. It is no different from robbery.

    Dustin (cb3719)

  137. Comment by Michael Ejercito — 11/17/2011 @ 10:02 am

    Remember, that States under their Police Power, can impose registration and insurance obligations on vehicle owners who use the public byways; but, there is no registration required for vehicles that never “turn a wheel” on said byways (when was the last time you saw someone in line at the DMV to renew the registration on his “Indy Car”), nor can they require that they be insured.

    AD-RtR/OS! (772aab)

  138. And yet the netowrk print and broadcast media does not point out this incongruity?

    Comment by Michael Ejercito — 11/17/2011 @ 11:02 am

    Like DRJ said, welcome to the lefty vision of America. The Deciders in the media will tell you what they deem relevant, and by relevant, I mean helpful to the vision.

    Dustin (cb3719)

  139. 137 – more…
    Forgot to add that the mandate in O-Care is there just because you exist.
    It is, in effect, a tax on breathing!

    AD-RtR/OS! (772aab)

  140. I mean helpful to the(ir) vision.

    FTFY!

    AD-RtR/OS! (772aab)

  141. In fact, they need as many healthy low risk people who frankly, don’t need comprehensive health insurance, to be forced into ‘the pool’ specifically because this lowers the cost for those who do need extensive coverage. It is no different from robbery.

    Does the same not apply to auto insurance?

    Anyway, there is an arguable equal protection violation, in that federal law requires that health insurers cover persons with pre-existing conditions and not consider those conditions when offering a premium, but auto insurers are not required to cover persons with multiple pre-existing drunk driving convictions nor are prohibited from considering such convictions when offering premiums.

    Who would have the courage to file such a suit? A health insurance company? Or a driver with multiple pre-existing drunk driving convictions?

    Michael Ejercito (64388b)

  142. Aaron:

    Kman’s argument not only ignores those inconvenient facts, but he is also implicitly arguing that Kagan was incompetent (as well as all the other lawyers in her office), because any idiot could have seen at least some challenge to the mandate coming.

    “Inconvenient facts?” As many have already pointed out here, there aren’t any facts which put Kagan in a strategy meeting to defend Obamacare. It’s all conjecture at this point. Magical thinking. She applauded its passage; that’s different from saying she plotted litigation strategy.

    And again, you seem to assume that Kagan is the only high level attorney in the Obama Administration who could or did weigh in on Obamacare strategy meetings. In fact, it would unusual for her to do so. In the corporate world, you rarely find appellate attorneys sitting in on corporate strategy meetings. Same too in the government world.

    Sure, it could have happened, but it’s certainly not “incompetence” if she didn’t attend those meetings personally. And it would have been a rather odd use of her time, since the President has at his disposal other offices for this purpose (i.e., the Office of Legal Counsel, where John Yoo hailed from).

    [Released from moderation because it shows how even when the information is easily accessible and he is pointed in that direction, Kman still demonstrates no understanding of the facts. From the Severino piece: “Though her department normally only deals with appeals, Kagan made the decision to involve the Solicitor General’s office before PPACA had even been signed into law. According to e-mails JCN has obtained, Neal Katyal, Kagan’s chief and only political deputy, stated in January 2010 that ‘Elena would definitely like OSG to be involved in this set of issues.’ After the first strategy meeting, Katyal emphasized his interest in getting the office ‘heavily involved even in the dct [District Court].’

    [Also this, later in the same piece: “During her confirmation hearings, Kagan stated that she was present at ‘at least one’ meeting in which the challenges to PPACA were discussed.” Amazingly even after I suggested that you “read[] the pieces I have cited” you didn’t know about these passages. And really, this is old news–if you only paid attention during the confirmation hearings you would know of the facts mentioned in the second passage. –Aaron]

    Kman (5576bf)

  143. Kman is forgetting the first rule of holes: stop digging.

    Aaron Worthing (e7d72e)

  144. Kman-Leave Kagan alone you sexists anti-gay people.

    DohBiden (ef98f0)

  145. Yes pro-lifers want the world to be overpopulated by 320,000 kids or something.

    DohBiden (ef98f0)

  146. Aaron:

    You obviously like to read between the lines. And probably haven’t been involved in many corporate level meetings either it seems.

    Being in a meeting where topics (such as challenges to PPACA) are “discussed” is a far cry from being in a meeting where strategies and decisions are made.

    I also know the difference between Elena Kagan, the person, and the Office of the Solicitor General.

    I read the passages. I also absorbed what they said, without resorting to embellishment and wishful thinking. It’s unfortunate that someone has to explain to you the very passages which you site.

    Kman (5576bf)

  147. Well, she may have been busy keeping military recruiters off of college campuses, or some other such promotion of our basic liberties

    Icy (384571)

  148. Does the same not apply to auto insurance?

    It would be odd to charge a person with provably higher risk the same as a person with very little risk.

    For example, someone who doesn’t need car insurance shouldn’t be forced to buy it and be charged the same price as someone with a DUI and a Porsche.

    My view is that many people don’t even need comprehensive health insurance. It’s a special product that I don’t even need. I need something similar in some senses… I need something for extreme catastrophes, but it’s sophistry to then say shows I benefit from this far more extensive and expensive insurance I don’t need.

    To me, it’s a bit like forcing me to buy car insurance if I don’t own a car. I guess more accurately, it’s like forcing me to buy car insurance + a loaf of bread if I don’t own a car.

    Dustin (cb3719)

  149. Big prop 8 news today, btw.

    Dustin (cb3719)

  150. Kagan is an environmental disaster…………..see I worry about my environment.

    DohBiden (ef98f0)

  151. Yeah, that’s it, Aaron. The only link I could find was a pdf so I didn’t bother.

    Dustin (cb3719)

  152. Kmart is creepy.

    JD (002c72)

  153. Dustin: at the risk of threadjacking, … it was the right decision on California constitutional law. What it means for prop 8 is that the CA9 is now likely to decide the merits. My guess is that it will uphold the district court, and that will set the stage for a June 2013 supreme court decision.

    aphrael (5d993c)

  154. aph

    we’ll have a thread on this soon.

    Aaron Worthing (e7d72e)

  155. Comment by Dustin — 11/17/2011 @ 11:03 am

    In fact, they need as many healthy low risk people who frankly, don’t need comprehensive health insurance,

    Because they can afford routine costs? This is also to cover people with poredictable high costs. That part is not insurance, it is a subsidy.

    to be forced into ‘the pool’ specifically because this lowers the cost for those who do need extensive coverage. It is no different from robbery.

    No different than taxation, but if they called it and thought of it as a tax, no politicians, and certainly no Democrats coiuld justify this sort of super-regressive middle class tax (with the only way out of it being to plead poverty.) that has the one saving grace that it will often not be collected.

    The individual mandate is…

    Not a tax that taxes higher incomes at higher rates.

    Not a tax that taxes all incomes at the same rate.

    Not a tax that taxes all incomes at the same rate, but with a maximum (like Social security)

    But a tax that taxes all PEOPLE the same Dollar amount of money.

    Sammy Finkelman (d3daeb)

  156. Because they can afford routine costs? This is also to cover people with poredictable high costs. That part is not insurance, it is a subsidy.

    I need coverage for unpredictable catastrophes. That’s all. I reject the notion I am benefiting when I’m forced to buy something that is 99% routine costs, because frankly I didn’t need coverage for that.

    Feel free to disagree and get whatever insurance you want. That’s your right, and I respect that.

    No different than taxation,

    Yes, I agree. This is simply a massive tax, and then the government through a middle man controls and subsidizes a huge entitlement. They play games to make it seem like something else, but that’s what it is.

    From each according to his income, to each according to his need.

    Dustin (cb3719)

  157. Kman

    > Being in a meeting where topics (such as challenges to PPACA) are “discussed” is a far cry from being in a meeting where strategies and decisions are made.

    Notice the goalpost moving.

    First, you say:

    > The mistake you make is an assumption (key word there) that Kagen knew at the time (key phrase there) that the right would rise up and flood the court with legal challenges to the individual mandate.

    So to respond I point out that she was even at meetings where they were discussing the strategy, and this is your response, after several rounds. Even if we take your interpretation as correct, her attendance at the meetings demonstrate that she knew this litigation was coming. And it does.

    And that is an unnaturally narrow reading of the sources to pretend that the meeting was to discuss the cases, but not the strategy at all in responding to them. Tell me, lawyer boy, have you ever been to a meeting at a firm or similar company where all they did was list the cases they were dealing with, without discussing strategy at all? The closest I have had in my experience was a brief meet to figure out where to allocate resources (i.e. people) but even then, strategy is discussed, as in “I need Joe Blow on this case because he really knows about patent law.”

    And all of that doesn’t change the fact that they are still not turning over the unredacted emails because it will give away their deliberations, a point you have completely glossed over.

    Aaron Worthing (e7d72e)

  158. AW – tell me you were not expecting the creepy one to be honest. One only needs to see her cheerleading, and her dispatching Kaytal to see her knowledge and position.

    JD (bc52c1)

  159. Tell me, lawyer boy, have you ever been to a meeting at a firm or similar company where all they did was list the cases they were dealing with, without discussing strategy at all?

    Every Tuesday, actually.

    Kman (5576bf)

  160. Kman

    you and i both know that is a lie.

    Aaron Worthing (e7d72e)

  161. you and i both know that is a lie.

    It’s not. We run down the cases and the latest developments (e.g., “plaintiffs filed a motion to dismiss on the grounds of _______. Our response is due on _________.”).

    If we stopped with each item to discuss legal strategy (especially when nobody has researched the relevant legal issues), the meetings would last all day.

    Kman (5576bf)


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