Fraud is the lingua franca of politics, a language cultivated and refined by generations of corrupt officials, grifters, and perjurers, but only a truly gifted practitioner can allow one unethical action to prepare the way for another. Only a master on the level of Barack Obama can align potentially illegal actions like chess moves, one deftly laying the groundwork for the next. The Justice Department has refused to comply with a Freedom of Information Act (FOIA) request made by CNSNews.com last May 25. As this author has noted, the administration appears to be selectively enforcing the law on FOIA requests, as with virtually everything else. While the administration rushes to provide liberals with the documents they request, it has delayed or denied conservative organizations like Judicial Watch, The Washington Times, and the English First Foundation.
Tired of such treatment, the Media Research Center has filed suit against the department. It seems clear why the administration may be wary of answering the CNSNews request: The news site seeks to determine whether Supreme Court Justice Elena Kagan is legally bound to recuse herself from hearing any case concerning ObamaCare. Kagan served as Obama’s solicitor general before being appointed to the Supreme Court last May. Her tenure in the administration included Obama’s signing of his health care reform bill. Two courts, in Virginia and Florida, have found this law unconstitutional, and the cases are sure to land before the High Court.
Recusal is necessary to prevent judges from giving the appearance — or the presence — of impropriety. Federal statute 28 U.S.C. 455 states that a judge must step aside “in any proceeding in which his impartiality might reasonably be questioned” or in which he (or she) “participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy.”
If Kagan can be shown to have given her legal opinion on ObamaCare, she cannot rule on its constitutionality. Since she was the Obama administration’s most powerful legal advocate, and ObamaCare was its most significant legislative victory, it strains credulity to believe she never offered her opinion about its constitutionality, especially when it was sure to be challenged in court.
With the Supreme Court divided between conservatives Roberts, Scalia, Thomas, and Alito on one side versus radicals Ginsburg, Breyer, Sotomayor, and Kagan on the other, every vote counts. (The “swing” vote usually falls to Justice Anthony Kennedy, who is fond of citing foreign law in place of the U.S. Constitution.) Obama selected Kagan, part from her radicalism, because she is regarded as politically savvy, able to steer a case through every loophole until it reaches the conclusion she desires. If the law removes her from the case, the best the president can hope for is a deadlocked court (or a providential vacancy).
Is the administration denying an FOIA request so Kagan can shepherd ObamaCare through the Supreme Court challenge? There is, at a minimum, the appearance of impropriety.