Apparently Justice Kagan was actually involved in Obamacare discussions while at DOJ

From Fox News:

With just weeks until the U.S. Supreme Court considers the constitutionality of President Obama's health care law, there are new calls for Justice Elena Kagan to recuse herself from the case.
Her critics point to a 2010 case regarding a San Francisco health measure, in which then-Solicitor General Kagan's office filed an amicus brief touting the newly passed health care law.
In May 2010, after Kagan had been nominated to the nation's highest court, Principal Deputy Solicitor General Neal Katyal sent her a memo outlining the cases in which she had "substantially participated." Kaytal specifically referenced the Golden Gate case, noting that it had been "discussed with Elena several times."
That's enough to convince Heritage Foundation Senior Legal Fellow Hans von Spakovsky that Kagan shouldn't take part in the current health care case before the high court.
"I don't see how any ethical lawyer adhering to professional codes of conduct could not consider that they need to recuse themselves from this case," he said. . . .

More on the most transparent administration ever

Whether one thinks that Kagan should rule on the constitutionality of Obamacare, it is hard to see why anyone would defend the Obama administration withholding this information on what cases that she worked on. From the WT:

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

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

Even a couple of years ago, who would have believed that we would be about to confirm a Supreme Court Justice who believed in banning books?

Here are some arguments that Elena Kagan approved of as the Solicitor General. Here are the arguments she approved of in March 29, 2009:

CHIEF JUSTICE ROBERTS: If it has one name, one use of the candidate's name, it would be covered, correct?
MR. STEWART: That's correct.
CHIEF JUSTICE ROBERTS: It's a 500-page book, and at the end it says, and so vote for X, the government could ban that?
MR. STEWART: Well, if it says vote for X, it would be express advocacy and it would be covered by the pre-existing Federal Election Campaign Act provision.
CHIEF JUSTICE ROBERTS: No, I'm talking about under the Constitution, what we've been discussing,
if it's a book. MR. STEWART: If it's a book and it is again, to leave -- to leave to one side the Official - Subject to Final Review produced -- question of.
CHIEF JUSTICE ROBERTS: Right, right. Forget the --
MR. STEWART: -- possible media exemption, if you had Citizens United or General Motors using general treasury funds to publish a book that said at the outset, for instance, Hillary Clinton's election would be a disaster for this --
CHIEF JUSTICE ROBERTS: Take my hypothetical. It doesn't say at the outset. It funds -- here is -- whatever it is, this is a discussion of the American political system, and at the end it says vote for X.
MR. STEWART: Yes, our position would be that the corporation could be required to use PAC funds rather than general treasury funds.
CHIEF JUSTICE ROBERTS: And if they didn't, you could ban it?
MR. STEWART: If they didn't, we could prohibit the publication of the book using the corporate treasury funds.

Ted Olson summarized the Obama administration's argument in the second oral arguments on the case on September 9, 2009.

THEODORE B. OLSON: The government admits that that radical concept of requiring public support for the speech before you can speak would even authorize it to criminalize books and signs. . . .

Here are the revised arguments that Kagan herself made where she backed away from the argument on books and argued that the current law only applied to short books (pamphlets) on September 9, 2009:

CHIEF JUSTICE ROBERTS: But we don't put our -- we don't put our First Amendment rights in the hands of FEC bureaucrats; and if you say that you are not going to apply it to a book, what about a pamphlet?
GENERAL KAGAN: I think a -- a pamphlet would be different. A pamphlet is pretty classic electioneering, so there is no attempt to say that 441 b only applies to video and not to print. . . .

NRA draws the line on Elena Kagan

ABC News has this piece on NRA saying that it will watch Senator's votes on Elena Kagan.

Kagan's involvement in altering the American College of Obstetricians and Gynecologists' statement on partial birth abortions

Kagan altered the meaning of the American College of Obstetricians and Gynecologists' statement on partial birth abortions to get a different outcome from the courts. It is disturbing that she did this, though it is also disturbing that it was so difficult last week for Senator Hatch to get her to admit that the memos in question were hers and this piece, while useful and interesting, neglects to mention that lack of honesty on her part.

Fox News piece that I had last week: A Vote for Kagan Is a Vote to Take Away Your Guns

I should have probably made the piece broader to include here positions against free speech and other issues. The piece has this info:

With those words in mind, alarm bells should have gone off during Elena Kagan’s confirmation testimony to the Senate Judiciary Committee on Tuesday. Here’s what Kagan told Sen. Charles Grassley (R-Iowa):

It has long been thought, starting from the “Miller” case, that the Second Amendment did not protect such a right. . . . Now the Heller decision has marked a very fundamental moment in the court's jurisprudence with respect to the Second Amendment. And as I suggested to Senator Feinstein there is not question going forward that ‘Heller’ is the law, that it is entitled to all the precedent that any decision is entitled to and that is true to the ‘McDonald’ case as well...

There are two big problems with Kagan’s remarks: she inaccurately describes the 1939 "Miller" case and her claims to follow stare decisis are meaningless.

The "Miller" decision said that the Second Amendment protected civilian use of firearms that are used in the military and that a sawed off shotgun wasn't a military weapon. But the court went no farther in explaining the right. There was no discussion of the modern liberal view of a “collective right.” The very short opinion didn’t say if there was an individual right to own military weapons. The issues were never addressed.

However, Kagan’s argument is precisely what Justice Stevens wrote . . . .

Here is the worthless response from the White House:

White House spokesman Ben LaBolt said that Kagan “made clear during the hearings that Heller and McDonald are the law of the land and therefore that the 2nd Amendment guarantees an individual, fundamental right to bear arms.” . . .

New Fox News piece: Illegal Alien Legal Challenge

My newest piece has this discussion:

With those words in mind, alarm bells should have gone off during Elena Kagan’s confirmation testimony to the Senate Judiciary Committee on Tuesday. Here’s what Kagan told Sen. Charles Grassley (R-Iowa):

It has long been thought, starting from the “Miller” case, that the Second Amendment did not protect such a right. . . . Now the Heller decision has marked a very fundamental moment in the court's jurisprudence with respect to the Second Amendment. And as I suggested to Senator Feinstein there is not question going forward that ‘Heller’ is the law, that it is entitled to all the precedent that any decision is entitled to and that is true to the ‘McDonald’ case as well...

There are two big problems with Kagan’s remarks: she inaccurately describes the 1939 "Miller" case and her claims to follow stare decisis are meaningless. . . .

Dems say that they are happy about the Supreme Court Striking down the Chicago Gun Ban, but . . . .

If Dems feel so strongly about Chicago gun ban case, why are they voting for Kagan?

When the Supreme Court extended the individual right to own a gun Monday, they handed Second Amendment advocates—many of whom are at home in the GOP—one of their most significant legal victories ever.

But who won the day in politics? The Democrats.

For them, the court’s groundbreaking decision couldn’t have been more beneficial to the cause in November. Now, Democratic candidates across the map figure they have one less issue to worry about on the campaign trail. And they won’t have to defend against Republican attacks over gun rights and an angry, energized base of gun owners. . . .

The chorus of responses to Monday’s ruling was a group of normally dissonant voices: It proved the rare occasion when both former Alaska Gov. Sarah Palin and Senate Majority Leader Harry Reid could find common ground. . . .

For Elena Kagan the NRA and KKK appear to be similarly repulsive

Robert VerBruggen of National Review Online has the story here.

Elena Kagan confirmation: Reading through tens of thousands of pages of documents in a week or two

Good thing that they are quickly slamming through Kagan's confirmation or people might actually have time to read all the documents. Documents last week, 42,000 pages tomorrow, tens of thousands of pages more next week, and then the confirmation hearings the following week.

The Clinton Library tomorrow will release another 42,000 pages of documents after issuing a first batch a week ago. Employees of the National Archives are helping to review the papers.

The documents will include those from Kagan’s time in the White House counsel’s office and related to her 1999 nomination to the U.S. Court of Appeals for the D.C. Circuit, said Susan Cooper, a spokeswoman for the National Archives. A Republican- led Senate never acted on that nomination.

A final round of documents will be released next week, including e-mails from her White House tenure, Cooper said. . . .

This was an interesting find.

The Republicans also distributed a memo in which Kagan said she was “a bit shocked” by a government sting operation that used the U.S. Postal Service to catch child sex predators. She said a federal appeals court may have been right to uphold the operation and the court should abstain from review. But she said Marshall should still order the government to file a legal brief in the matter. . . .

Kagan's moral beliefs and her role as a judge

Economist David Rose has an interesting piece at the Christian Science Monitor on Kagan and her views here.

Kagan will be a decidedly "liberal left" justice

I have several reactions to this. Previously Kagan supporters argued that her memos to Justice Marshall didn't reflect her own views, this was in a Second Amendment case involving DC. The New York Times article indicates quite clearly that she had strong personal views that she pushed while she was clerking. The memo in this case below indicates that she is not at all sympathetic to property rights and would support takings in its broadest forms.

Following a flurry of articles on this week’s opinions, Court commentators have turned their attention back to Elena Kagan’s upcoming confirmation hearings, parsing her records for clues to her judicial philosophy. At the New York Times, Charlie Savage highlights a memo Kagan wrote during her clerkship for Justice Thurgood Marshall, in which she emphatically urged the Justice to overturn a lower court ruling suggesting that a rent-control ordinance was unconstitutional. The memo, Savage writes, is one of hundreds housed at the Library of Congress that will be used in the coming weeks to illuminate her views. At CBS News, Jan Crawford reports on several additional memos from Kagan’s time as a clerk, including one on a case concerning a prisoner who wanted the state to pay for her to have an abortion, and another concerning a challenge to a school desegregation program. The documents, Crawford writes, reveal Kagan as “standing shoulder-to-shoulder with the liberal left” in the era of the relatively conservative Rehnquist Court. . . .

CBS's report to what a down the line "liberal left" justice that Kagan would make:

Kagan's abortion memo, expressing concern the conservative Court will use a prisoner's appeal to "create some very bad law on abortion."
Memo on "amazingly sensible" school desegregation program
Memo requiring states to recognize marriages from other states, saying the argument was at least "arguably correct."
Gun rights: "I'm not sympathetic."
Criminals' rights: wishes Court "would reverse" ineffective assistance of counsel ruling making it harder for criminals to challenge their convictions.

Some documents show how very liberal Kagan is on crime and other issues

The story here is from CBS News:

But in documents obtained by CBS News, Kagan--while working as a law clerk to the late Justice Thurgood Marshall - made her positions clear on some of the nation's most contentious social issues.

The documents, buried in Marshall's papers in the Library of Congress, show Kagan standing shoulder-to-shoulder with the liberal left, at a time when the Rehnquist Supreme Court was moving to the conservative right.

They also provide a remarkably candid picture of her opinions, including on the most controversial issue Supreme Court nominees ever confront: abortion.

Although Kagan's confirmation has thus far been an all but foregone conclusion, sources say these documents will give Republicans a few cards of their own to mount a strong fight against her. . . .

Transparency?: Clinton library unlikely to provide documents in time for Kagan's Confirmation hearing

Why the rush on Kagan? Can't they wait until Kagan's record is available before the confirmation hearing?

The Senate Judiciary Committee on Wednesday set June 28 as the start date for hearings on Supreme Court nominee Elena Kagan, and asked the Clinton presidential library to turn over voluminous documents related to Kagan's time as a top presidential assistant in the 1990s.

But Terri Garner, director of the William J. Clinton Presidential Library and Museum, said in an interview Wednesday that it would be "very difficult" for her facility to meet the deadline. She said the records request is overly broad and "too general in scope" and that, under the Presidential Records Act, attorneys for both Clinton and President Obama have the right to read and review each document before it is released to the committee.

"There are just too many things here," she said. "These are legal documents and they are presidential records, and they have to be read by an archivist and vetted for any legal restrictions. And they have to be read line by line."

Kagan, currently U.S. solicitor general, served in the Clinton White House as an associate counsel to the president in 1995 and 1996 and as deputy assistant for domestic policy from 1997 to 1999. . . .

Greg Craig on Kagan

ABC’s “This Week” interviewed Greg Craig, who served as White House Counsel and top lawyer in the Obama administration, on Sunday. Craig a close friend of Kagan promised that she "is largely a progressive in the mold of Obama himself." I don't think is particularly comforting.

Did Elena Kagan violate the law in forbidding military recruiters on campus?

At the least Kagan's actions show that she is very political and that politics comes first.

Sen. Jeff Sessions, the ranking Republican on the Senate Judiciary Committee, told ABC News' "This Week" that Supreme Court nominee Elena Kagan "violated the law" by not allowing military recruiting on the Harvard Law School campus when she was dean there, and added the issue is "no little-bitty matter."

But Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., appearing on "This Week" with Sessions, dismissed the argument as "sound and fury signifying nothing."

The controversy revolves around Kagan's decision to prohibit military recruiting directly on the law school's campus because the military's "Don't Ask Don't Tell" policy prohibiting gays from openly serving in the armed forces violated Harvard Law School's anti-discrimination policy.

When the Supreme Court ruled that a law tying federal funding of schools to military recruiting was constitutional, Kagan allowed on-campus military recruiting to resume so the school wouldn't lose funding. Asked about the issue by host Jake Tapper, Sessions, R-Ala., said, "This is no little-bitty matter, Jake. She would not let them come to the area that does the recruiting on the campus. They had to meet with some student veterans, and this is not acceptable. It was a big error.

"That went on for a number of years," Sessions said. "It was a national issue. People still remember the debate about it. . . .

Palin correctly warns about Obama's views on guns

All one has to do is look at Obama's Supreme Court nominations to see what he wants to do on guns.

Former Alaska Gov. Sarah Palin warned NRA members Friday that President Barack Obama wants to gut the Second Amendment and told a separate gathering that "mama grizzlies" will help Republicans win this November, sweeping away the Democratic agenda.

Palin, a potential 2012 presidential candidate, told National Rifle Association members during their annual meeting that the only thing stopping Obama and his Democratic allies from trying to ban guns is political backlash.

"Don't doubt for a minute that, if they thought they could get away with it, they would ban guns and ban ammunition and gut the Second Amendment," said Palin, a lifelong NRA member who once had a baby shower at a local gun range in Alaska. "It's the job of all of us at the NRA and its allies to stop them in their tracks."

Gun enthusiasts have trumpeted fears that their rights would erode under a Democrat-led White House and Congress, but President Barack Obama has largely been silent on issues such as reviving an assault weapons ban or strengthening background checks at gun shows. Obama also signed a law allowing people to carry loaded guns in national parks. . . .

Kagan on guns.

Elena Kagan may be hostile to the view that the 2nd Amendment to the Constitution protects American’s individual right to keep and bear arms. Bloomberg reports today, “Kagan Was ‘Not Sympathetic’ as Law Clerk to Gun-Rights Argument.” With the evidence presented by the Los Angeles Times that Kagan was very active in the gun control agenda during her time as counsel for the President Bill Clinton Administration, a thorough examination of Kagan’s views on the 2nd Amendment is merited.

Bloomberg Reports that “Elena Kagan said as a U.S. Supreme Court law clerk in 1987 that she was ‘not sympathetic’ toward a man who contended that his constitutional rights were violated when he was convicted for carrying an unlicensed pistol.” In the wake of the District of Columbia v. Heller decision holding that the 2nd Amendment is an individual right, it is incumbent upon Senators to explore the views of Solicitor General Elena Kagan on American’s civil right to own a firearm. More from Bloomberg:

Kagan, whom President Barack Obama nominated to the high court this week, made the comment to Justice Thurgood Marshall, urging him in a one-paragraph memo to vote against hearing the District of Columbia man’s appeal. The man’s “sole contention is that the District of Columbia’s firearms statutes violate his constitutional right to ‘keep and bear arms,’” Kagan wrote. “I’m not sympathetic.”

From the LA Times:

A centrist course meant negotiating with the firearms industry on a deal to put child-safety locks on guns rather than risk a legislative showdown. Gun-control efforts were a hallmark of the Clinton administration. Kagan had already been involved in an executive order that required all federal law enforcement officers to install locks on their weapons.

Those moves angered the National Rifle Assn., which became even more alarmed in late 1998 when Clinton proposed closing the "gun show" loophole that allowed firearms purchases without background checks. A legislative effort to do just that was launched as Kagan departed the White House for Harvard in 1999.

Richard Feldman, a former firearms lobbyist who helped broker the trigger-lock deal with Emanuel, said the NRA could make trouble for Kagan simply because she was part of the White House efforts at the time. "They'll try to use it against her," Feldman said. "They'll find a memo." . . .

Kagan "not sympathetic" to individual right to own guns

This is not a surprise. So much for Obama promise that he supports and individual's right to own guns.

Elena Kagan said as a U.S. Supreme Court law clerk in 1987 that she was “not sympathetic” toward a man who contended that his constitutional rights were violated when he was convicted for carrying an unlicensed pistol.

Kagan, whom President Barack Obama nominated to the high court this week, made the comment to Justice Thurgood Marshall, urging him in a one-paragraph memo to vote against hearing the District of Columbia man’s appeal.

The man’s “sole contention is that the District of Columbia’s firearms statutes violate his constitutional right to ‘keep and bear arms,’” Kagan wrote. “I’m not sympathetic.” . . .

There is a pattern here with Sotomayor (here and here). Some earlier pieces that I wrote on Obama and guns are here and here.

Kagan's competency questioned

My own belief is that the right point to make here is her honesty, not her competency. Hotair has this information here. Even though it makes little practical sense to try to spin the Supreme Court, I believe that she was playing to a bigger audience, and that she wanted to spin this case to make the Supreme Court appear more extreme than it was. She must have known that she was very likely to lose this case (it was part of an unusual second hearing) and the handwriting was on the wall.

ORAL ARGUMENT OF ELENA KAGAN

ON BEHALF OF THE APPELLEE GENERAL KAGAN: Mr. Chief Justice and may it please the Court:

I have three very quick points to make about the government position. The first is that this issue has a long history. For over 100 years Congress has made a judgment that corporations must be subject to special rules when they participate in elections and this Court has never questioned that judgment.

Number two -

JUSTICE SCALIA: Wait, wait, wait, wait. We never questioned it, but we never approved it, either. And we gave some really weird interpretations to the Taft-Hartley Act in order to avoid confronting the question.

GENERAL KAGAN: I will repeat what I said, Justice Scalia: For 100 years this Court, faced with many opportunities to do so, left standing the legislation that is at issue in this case — first the contribution limits, then the expenditure limits that came in by way of Taft-Hartley — and then of course in Austin specifically approved those limits.

JUSTICE SCALIA: I don’t understand what you are saying. I mean, we are not a self — self-starting institution here. We only disapprove of something when somebody asks us to. And if there was no occasion for us to approve or disapprove, it proves nothing whatever that we didn’t disapprove it.

GENERAL KAGAN: Well, you are not a self-starting institution. But many litigants brought many cases to you in 1907 and onwards and in each case this Court turns down, declined the opportunity, to invalidate or otherwise interfere with this legislation.

JUSTICE KENNEDY: But that judgment was validated by Buckley’s contribution-expenditure line. And you’re correct if you look at contributions, but this is an expenditure case. And I think that it doesn’t clarify the situation to say that for100 years — to suggest that for 100 years we would have allowed expenditure limitations, which in order to work at all have to have a speaker-based distinction, exemption from media, content-based distinction, time-based distinction. We’ve never allowed that. . . .

The London Times: "Obama nominates a liberal to US Supreme Court"

At least the foreign media makes it clear where Kagan is coming from:

Her age gives her the opportunity to extend Mr Obama’s legacy for a generation, reinvigorating the court’s liberal wing by replacing the 90-year-old Justice John Paul Stevens. . . .