The Other McCain

"One should either write ruthlessly what one believes to be the truth, or else shut up." — Arthur Koestler

Of Course Kagan Will Not Recuse Herself

Posted on | November 16, 2011 | 25 Comments

by Smitty


Nearly lost in this is the possibility that Kagan lied during her confirmation. She told the Senate Judiciary Committee that she had not been asked about the legal issues of ObamaCare nor had she offered any views on them. The emails, however, seem to tell a different story. Two exclamation points plainly show that in her legal opinion, ObamaCare was constitutional.

Elena Kagan was telling a higher truth during her confirmation hearings. We are in a Postmodern era. If Kagan felt, at the time of her confirmation hearings, that she had not been asked, then she was telling the truth at the time. Truth is just a social construct, and we really, really need Commando Kagan to get in there and save ObamaCare. Kagan is to be applauded for standing up to those mean conservatives who want to see poor people be uninsured.

I am, of course, being purely sarcastic in the previous paragraph. Kagan is just another brick in this administration’s wall of contempt for all that is good about America. If she does the right thing will be ‘unexpected’. The final insult, of course, will be blanket pardons for Holder et al.

And, yes: I want to see the video of Kagan hearing the arguments. It would be nice to have my negative opinion of Kagan adjusted upward. Let the lady clear the air, and disprove the notion that she is just a sad little tool.

via Insty

Update: linked at The Conservatory in an overview that is well worth your time.


25 Responses to “Of Course Kagan Will Not Recuse Herself”

  1. Joe
    November 16th, 2011 @ 12:24 pm

    She would have been smart to recuse herself.  There is no partisan reason not to.  To overturn Obmama care will still require 5 justices (a 4-4 tie does not overturn).  Her staying on makes it almost certain that Thomas will not be recused (a weak argument for Dems even if Kagan did the right thing).  Assuming Roberts and Alito don’t go statist on us (not guaranteed at all), this issue probably turns on one vote–Kennedy.  But if Kennedy was waivering in his centralists boots, Kagan being a partisan whore only makes it more likely he might buck up and be a man this time. 

    But maybe the fix is in.  Maybe Obama figures he will try to win, but if he loses, he can run for re-election on an activist right wing court.  That is what Althouse has been saying.  She is generally correct on predicting what they do (better than Dahlia Lithwick and Jeff Toobin). 

  2. Joe
    November 16th, 2011 @ 12:31 pm

    If the Court takes down the entire Act, it would do Obama a great favor, which is why I’m predicting the Court will do just that. That was my prediction a few weeks ago, reading, not the the existing doctrine, but “the political forces at play and assessing the Court’s vulnerability to those forces.”

    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…That doesn’t mean the Justices are not perceiving the case as easy. It only means they don’t want you to see it that way.

  3. Edward
    November 16th, 2011 @ 12:40 pm

    Well what the hell.  If the Mandate for ObamaCare is upheld then the next Republican administration can require all registered Democrats to buy a Chevy Volt.

    That ought to put a pickle in their pants.

  4. Our Out of Control Executive
    November 16th, 2011 @ 12:56 pm

    […] Pelosi’s ramming of the legislation through by a variety of extra-constitutional means, but she will not recuse herself, and it’s doubtful that anybody in the legacy media will make much of an attempt to challenge […]

  5. Anonymous
    November 16th, 2011 @ 1:07 pm

    Two exclamation points.

    Never underestimate the power of punctuation.

    This should be a lesson to you all: conserve your exclamation points.

    (no actual exclamation points were harmed in the creation of this comment)

  6. Anonymous
    November 16th, 2011 @ 1:10 pm

    How in the world does “taking down the entire law” do Obama a favor?

    Sure, it takes Obamacare off the plate, economically, and might help boost the economy–somewhat.  But it confirms “Loser” status on Obama, and the economy cannot possibly recover enough to help the SCOAMFOTUS by November, 2012.

  7. Joe
    November 16th, 2011 @ 1:17 pm

    He wants it to stand.  But which form of defeat is better for Obama?  The law being completely unworkable, going back to legislative correction, and falling apart?  Or an “activist right wing court” thwarting the will of the people? 

    The later will be their fall back position (if the court does knock it down). 

  8. Joe
    November 16th, 2011 @ 1:20 pm

    That is Althouse’s position.  I think she is overstating it.  But I am sure a court reversal will be crafted as an re-election strategy for Obama.  Which is fine, I would still prefer seeing Obamacare gone sooner rather than later.  And this is one where the Court should act and strike it down, not for partisan reasons, but because it is unconstitutional. 

  9. Joe
    November 16th, 2011 @ 1:22 pm

    Jeff Goldstein notes that the law may implode on its own:

    A legislative miscarriage. 

  10. Finrod Felagund
    November 16th, 2011 @ 1:38 pm

    It would be nice to have my negative opinion of Kagan adjusted upward.
    Let the lady clear the air, and disprove the notion that she is just a
    sad little tool.

    She can’t disprove that notion because she IS just a sad little tool.

  11. smitty
    November 16th, 2011 @ 1:51 pm

    BHO wants single payer. The precise means of getting there are a detail.

  12. smitty
    November 16th, 2011 @ 1:53 pm

    Miscarriage; abortion; strange by-blow of a zombie, a werewolf, and a vampire: ObamaCare by any other name is still ObamaCare.

  13. Joe
    November 16th, 2011 @ 1:56 pm

    Of course he does.  But I think he is realizing Obamacare may not get him there.  He will of course blame Pelosi and Reid.  Or the right wing court if it goes down. 

    Because it is a BFD if this goes down. 

  14. Joe
    November 16th, 2011 @ 1:57 pm

    Maybe we should just call it an abomination.  I want to see it gone, the sooner the better. 

  15. ThePaganTemple
    November 16th, 2011 @ 2:03 pm

    SCOTUS decisions are supposed to be thoughtful deliberations, not a chess game. And if Obama lost and tried to run for re-election in 2012 it would totally split the Democrat Party, so I doubt the party bosses would go along with that. If he loses this year it might be by a squeaker, but if he were nominated in 2016 he’d be trounced badly.

  16. ThePaganTemple
    November 16th, 2011 @ 2:04 pm

    There’s no way in hell he gets that now.

  17. Anonymous
    November 16th, 2011 @ 2:18 pm

    The issue of whether she lied at her confirmation hearing should be saved for her impeachment.

  18. Charles
    November 16th, 2011 @ 2:35 pm

    “”I hear they have the votes, Larry!! Simply amazing,” is subject to multiple interpretations. Maybe she was amazed that such a blatantly unconstituional law was passed. Maybe she was amazed they had passed it without reading it. And maybe after reading it she will find the individual mandate a little too Romney-esque for her Constitutional tastes.

  19. Bob Belvedere
    November 16th, 2011 @ 2:47 pm

    I prefer the term Useful Idiot.

  20. Adjoran
    November 16th, 2011 @ 3:08 pm

    The fact is there is no appeal or oversight of a Justice’s failure to recuse himself.   It is assumed they will do the right thing.  (As Joe notes in the first comment, it would have no practical effect on the issue, five votes are still needed to overturn the law).

    THE MAIN TRUTH HERE, the thing we all need to understand from this illustration, is that elections matter.  It is insane to say there is “no difference” even between Jon Huntsman and Obama.  Any Republican will name quite different people to the bench, and there will be at least one new opening on SCOTUS and 200-300 lower court vacancies for the next President to fill with lifetime appointments.

    No, there is no guarantee of a strict constructionist judge from a Republican President.  Stevens, Souter, and even Brennan and Earl Warren were Republican appointees who didn’t work out (when asked upon leaving office about mistakes he made, Ike said “My two biggest mistakes are sitting on the Supreme Court”).

    But there IS  a guarantee of radical leftist appointees from Obama, this we KNOW by his appointments already – when he still must stand for reelection, he appoints extreme leftists.  What will he do when he no longer must face the voters?

    I will vote for whoever the GOP nominates to replace this odious pretender, even if it is Gary Johnson’s neighbor’s dog’s poop.

  21. Adjoran
    November 16th, 2011 @ 3:14 pm

    She’s demonstrating the limitations of a person who lives in an academic cocoon.  SCOTUS cases almost never become important issues in Presidential elections. 

    Miranda didn’t, Roe v Wade didn’t, and Kelo didn’t.  Althouse reads the comments on blogs and assumes the electorate, educated in a union-controlled public system, is as well-informed.

    They ain’t – and I would add that’s how we ended up with Obama in the first place, but Althouse was one who voted for him, so the line loses most of its punch.

  22. Joe
    November 16th, 2011 @ 3:37 pm

    Pagan:  Good! 

  23. paulbaker
    November 16th, 2011 @ 3:38 pm

    With C-Span wanting to televise it, this brings up two interesting points.
    1.  Will Obama’s lawyers oppose televising it?  Pretty ironic that the President that reneged on his pledged to televise the crafting of healthcare bill would now oppose televising the arguments.
    2.  There would have been no need for the lawsuit if indeed President Obama would have obeyed Candidate Obama and televised the crafting of the bill, because then it would have not passed Congress.

  24. Joe
    November 16th, 2011 @ 3:38 pm

    True.  But Kelo mattered to the GOP base.  And if Obamacare is revesed it will matter to the Dems. 

  25. Shawn Gillogly
    November 17th, 2011 @ 7:09 am

    Well of course, the flaw in your argument is, as you pointed out, Statist GOP nominees give us Statist SCOTUS nominees. There’s no ‘mistakes.’ That’s their idea of a ‘reasonable compromise’ with the Dims.

    Since they have no principles and care not one whit about them, they offer up mealy-mouthed candidates who have neither intellect nor conviction as well.

    So no, in practice, it makes no real difference at all. That’s aside from the long term question, as to whether or not we’d be WORSE off listening to the media meme of Romney=Conservative because ‘obviously’ GOP=Conservative for 4 years.

    And then there’s the issue of why I should reward a man who encourages his surrogates to break the law and shows no awareness for legal matters himself (except for where it might have personal repercussions on his perpetual campaign) with my vote.

    So while there might be a short-term difference, long term, it’s worse. Sorry. It’s time to divorce the terms Conservative and Republican. Because when the GOP takes the former for granted, we’ve seen what we get.