Ben Johnson

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Kagan’s participation in ObamaCare decision may have violated judicial ethics and federal statute

Ben Johnson
Ben Johnson
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WASHINGTON, D.C., June 29, 2012, (LifeSiteNews.com) – Elena Kagan’s decision to vote on Thursday’s health care ruling may have violated judicial ethics and federal statute, legal experts say. As Solicitor General, Kagan appointed the head of the legal team that formulated the president’s legal defense of the health care reform bill, signaling a possible conflict of interest. Her participation, according to liberals and conservative scholars alike, casts a pall over the outcome.

“Her evident refusal to explain why she hasn’t recused herself given all the substantial information out there, taints the decision,” Judicial Watch President Tom Fitton told LifeSiteNews.com.

“We can be all upset, and rightly so, about [Chief Justice John] Roberts signing on to this terrible, judicial activist decision,” he said, “but in terms of good government there is now substantial question about the legitimacy of the decision, because of the outstanding questions about Kagan’s participation in the ObamaCare defense when she was Solicitor General.”

Federal statute 28 U.S.C. 455 demands 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.”

“Elena Kagan should have recused herself from this decision, considering she was Solicitor General during the highly contentious Congressional debates over the Affordable Care Act,” constitutional scholar John W. Whitehead, president of The Rutherford Institute, wrote in an e-mail to LifeSiteNews.com. “She was certainly in a position which would call into question her ability to be impartial in her ruling.”

After a contentious Freedom of Information Act request, Judicial Watch secured the text of multiple e-mails and the Vaughn index, which refers to seven e-mails written from March 17-21, 2010. Kagan was copied on three e-mails that discuss “what categories of legal arguments may arise and should be prepared in the anticipated lawsuit.” Another four dealt with “expected litigation” against the health care law.

On January 8, 2010, Brian Hauck, Senior Counsel to Associate Attorney General Thomas Perrelli, wrote to Kagan’s deputy, Neal Katyal, asking for the office’s assistance in “how to defend against the inevitable challenges to the health care proposals that are pending.” Three minutes later, Katyal replied, “Absolutely right on. Let’s crush them. I’ll speak with Elena and designate someone.” After Katyal volunteered, Kagan responded, “You should do it.”

A few hours later, Katyal updated Hauck, writing, “Brian, Elena would definitely like OSG [the Office of Solicitor General] to be involved in this set of issues.” Katyal added,”I will handle this myself, along with an Assistant from my office, (Name Redacted), and we will bring Elena in as needed.” (Emphasis added.)

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When Katyal suggested Kagan should attend a meeting “to help us prepare for litigation,”  Kagan ended the paper trail cold, responding, “What’s your phone number?”

Katyal would later insist Kagan had been “walled off from Day One,” and he had “never discussed the issue with her one bit.”

Kagan and Lawrence Tribe later exchanged e-mails celebrating the passage of the health care law.

Sen. Jeff Sessions, R-AL, called Kagan’s appointment of Katyal, “the legal equivalent of a firm’s senior partner delegating work to a junior associate.” Citing the Tenth Circuit Court’s ruling in United States v. Gipson and other precedents, Sessions argued that Kagan’s actions are all the law “requires to trigger mandatory recusal.” 

It is not merely conservatives who believe Kagan should have stepped aside.

Eric Segall, who describes himself as “a liberal constitutional law professor for more than 20 years, and a loyal Democrat,” wrote in Slate, “Elena Kagan should recuse herself from hearing challenges to the act.” He said even “the lack of certainty points to recusal, because it raises serious doubts…about the appearance that a Supreme Court Justice with a conflict of interest is sitting on a major case.” He noted no other justice had been as closely tied to a lawsuit as Kagan is to ObamaCare.

“She ought to step aside,” he wrote. “Nothing less than the integrity of the Supreme Court is at stake.”   

One of Kagan’s judicial heroes, Thurgood Marshall, disqualified himself in 98 of the 171 cases – 57 percent – decided his first year on the High Court, after leaving his post as Solicitor General. 

During her confirmation hearings, Kagan pledged to recuse herself if “officially formally approved something” or “played a substantial role.” 

Although that falls short of the legal standard, Chief Justice Roberts has taken a hands-off approach, writing at the end of last year that, because of the justices’ “exceptional integrity” and “character,” he had “complete confidence in the capability of my colleagues to determine when recusal is warranted.” 

Fitton wrote in a letter to Kagan that he did not call on her to recuse herself but demanded she “address the facts surrounding your tenure as Solicitor General” and her role in the PPACA legal defense “‘as they existed,’ not as they are being ‘surmised or reported.’” Yet she has refused to clarify her role in the defense.

“Her silence certainly does not instill faith that there isn’t something there that would cause even greater concern,” Fitton told LifeSiteNews.

For years, Judicial Watch has led the legal effort to uncover Kagan’s role in the administration’s defense of the unpopular and far-reaching law, and determine if she is required to refrain from weighing in on the case. 

Fitton told LifeSiteNews.com the fight would continue. “This issue is not over,” he said.

The organization is currently in another lawsuit, requesting all calendars, agenda, and phone logs for the meetings their previous document cache revealed. 

“I predict we’re still going to get documents about the Kagan question. It surely will be interesting to see what they disclose.”

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Dustin Siggins Dustin Siggins Follow Dustin

Two Congressmen confirm: National 20-week ban on abortion will come up for a vote shortly

Dustin Siggins Dustin Siggins Follow Dustin
By Dustin Siggins

WASHINGTON, D.C., April 17, 2015 (LifeSiteNews.com) – A bill to end abortion in the United States after 20 weeks will move forward, and it will have the strong support of two leading pro-life Congressmen, the two Republicans told LifeSiteNews.com at the eighth annual Susan B. Anthony List Campaign for Life Summit on Thursday.

Rep. Chris Smith, R-NJ, told LifeSiteNews and the National Catholic Register that ongoing House discussions on H.R. 36, the "Pain Capable Unborn Child Protection Act," will result in a pro-life bill moving forward.

"Very good language" is being put together, Smith told The Register. He told LifeSiteNews that he fully anticipated being able to support the final bill, because the House Republican caucus "wouldn't have something that would be unsupportable. Our leadership is genuinely pro-life."

In 2013, the "Pain Capable Unborn Child Protection Act" easily passed through the House of Representatives, only to be stalled by a Democratic-controlled Senate. This year, an identical bill was halted by Rep. Renee Ellmers, R-NC, and other Republicans -- surprising and angering pro-life leaders who thought its passage was assured. That bill, H.R. 36, is now being rewritten so it can be voted on by the full House, though its final wording remains uncertain.

Some fear that the House leadership will modify the bill to mollify Ellmers. She and others objected that the bill allows women to abort a child after 20 weeks in the case of rape – but only if they report that rape to the authorities.

Pro-life activists say removing the reporting requirement would take abortionists at their word that the women whose children they abort claimed to be raped. Congresswoman Ellmers has publicly stated the House leadership is considering such a proposal.

Jill Stanek, who was recently arrested on Capitol Hill as part of a protest to encourage Republicans to pass H.R. 36, said that would be "a loophole big enough for a Mack truck."

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Congressman Smith said the bill will come to the floor shortly. "The commitment to this bill is ironclad; we just have to work out some details," Smith said.

He also noted that, while a vote on the 20-week ban has been delayed for nearly three months, "we did get the No Taxpayer Funding for Abortion Act passed, and that would have been in the queue now, so we just reversed" the order of the two bills.

Congressman Smith spoke to both outlets shortly after participating in a panel at the Summit.

Another speaker was Rep. Steve King, R-IA, who also supports the 20-week ban.

"I can't think of what” language that is actively under consideration could make him rethink his support for the bill, King said. He also told attendees that the nation was moving in a direction of supporting life.

The outspoken Congressman declined to answer further, noting "that's asking me to anticipate an unknown hypothetical."

The annual Campaign for Life Summit and its related gala drew other high-profile speakers, including presidential candidate Senator Rand Paul, potential presidential hopeful Senator Lindsay Graham, and Republican National Committee Chairman Reince Priebus.  

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"Someone who doesn’t flinch at the dismemberment of babies is not going to flinch at the dismemberment of some evangelical baker’s conscience."
Jonathon van Maren Jonathon van Maren Follow Jonathon

Pro-lifers are winning. So now they’re coming for our cupcakes?

Jonathon van Maren Jonathon van Maren Follow Jonathon
By Jonathon van Maren

As I travel across Canada (and at times the United States) speaking on abortion and various facets of the Culture of Death, one of the things I hear often is a hopelessness, a despair that the West is being flattened by the juggernaut of the Sexual Revolution. There is a feeling among many people that the restriction of religious liberty, the continued legality of abortion, and the redefinition of marriage are inevitable.

This is, of course, one of the most prominent and successful strategies of the Sexual Revolutionaries—create an aura of inevitability while concurrently demonizing all those who oppose their new and mangled “progress” as Neanderthals on the cusp of being left behind by History. That inevitability becomes a self-fulfilling prophecy, because many people don’t realize that the various battles in the Sexual Revolution actually all correlate to one another—that what we are seeing now is the end game of an incredibly vast and well-planned cultural project.

It is because we miss many of these connections that we often cannot see, with clarity, how the culture wars are actually unfolding. I read with great interest a recent column by Rev. Douglas Wilson, eloquently titled “With stirrups raised to Molech.”

“We are now much occupied with the issues swirling around same sex mirage,” he writes, “but we need to take great care not to get distracted. Why have the homosexual activists gone all in on this issue? Why is their prosecutorial zeal so adamant? We went, in just a matter of months, from ‘let’s let individual states’ decide on this, to federal judges striking down state statutes, followed up hard by official harassment of florists, bakers, and photographers. Why the anger, and why the savage over-reach? And do they really think we couldn’t remember all the things they were assuring us of this time last year?”

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It’s a compelling question, and one that I’ve heard many Christians puzzling over recently. Why do the advocates of the Sexual Revolution despise those who disagree with them so viciously? It is partly because their cultural project does not, as they claim, consist of “living and let live.” It is about compulsory acceptance of any and all sexual behaviors, with tax-payer funding for the rubbers and pills they need to ensure all such behaviors remain sterile, and extermination crews to suction, poison, and dismember any inconvenient fetuses that may come into being as the result of casual coitus.

The ancient mantra “the State has no business in the bedrooms of the nation” has long been abandoned—the emboldened Sexual Revolutionaries now demand that politicians show up at their exhibitionist parades of public indecency, force schools to impose their so-called “morally neutral” view of sexuality on children, and force into silence those who still hold to traditional values.

Rev. Wilson, however, thinks that this loud and vicious war on conscience may be about even more than that. The pro-life cause, he notes, has been very successful in the Unites States. The abortion rate is the lowest it has been since 1973. Hundreds of pro-life laws are passing on the state level. The abortion industry has been successfully stigmatized. True, the successes are, for pro-lifers, often too feeble and not nearly adequate enough in the face of such unrestrained bloodshed. Nevertheless, the momentum has turned against the Sexual Revolutionaries who have championed abortion for decades—their shock and anger at the strength of the pro-life movement evident in pro-abortion signs at rallies that read, “I can’t believe I still have to protest this s**t.”

It is because of the pro-life movement’s success, Wilson muses, that the Sexual Revolutionaries may be coming at us with such fury. “If a nation has slaughtered 50 million infants,” he writes, “they are not going to suddenly get a sense of decency over you and your cupcakes. Now this explains their lack of proportion, and their refusal to acknowledge the rights of florists. Someone who doesn’t flinch at the dismemberment of babies is not going to flinch at the dismemberment of some evangelical baker’s conscience. This reveals their distorted priorities, of course, but it also might be revealing a strategy. Is the homosexual lobby doing this because they are freaking out over their losses on the pro-life front? And are they doing so in a way intended to distract us away from an issue where we are slowly, gradually, inexorably, winning?”

It’s a fascinating perspective. It’s true—and has always been true historically—that when one group of human beings is classified as nonhuman by a society as nonhuman and subsequently butchered, the whole of society is degraded. No nation and no culture can collectively and systematically kill so many human beings without a correlating hardening of the conscience. But on the pro-life front, there has been decades of fierce resistance, hundreds of incremental victories, and a renewed energy among the upcoming generation of activists. For the Sexual Revolutionaries who thought the battle was over when Roe v. Wade was announced in 1973, this must be a bitter pill to swallow indeed.

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Lisa Bourne

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‘Prominent’ Catholics attacking Archbishop Cordileone are big donors to Pelosi and pro-abort Democrats

Lisa Bourne
By Lisa Bourne

Note: To sign a petition supporting Archbishop Cordileone, click here

SAN FRANCISCO, CA, April 17, 2015 (LifeSiteNews.com) -- Big donors to the Democrat Party and pro-abortion Nancy Pelosi are among those publicly harassing San Francisco Archbishop Salvatore Cordileone for protecting Catholic identity in the area’s Catholic high schools.

A big-ticket full-page ad ran April 16 in the San Francisco Chronicle attacking the archbishop and calling Pope Francis to oust him for his efforts to reinforce Catholic principles in the schools.

A number of prominent San Francisco-area residents identifying as Catholic are signatories of the ad, and several are wealthy donors to Democrat entities and pro-abortion politicians, Catholic Vote reports.

Federal Election Commission records indicate Charles Geschke, Adobe Systems chairman and previous head of the Board of Trustees at the University of San Francisco, gave more than $240,000 to Democrat groups, as well as $2,300 to Nancy Pelosi and $4,000 to John Kerry, both politicians who claim to be Catholic but support abortion and homosexual “marriage.”

Also on the list is political consultant and businessman Clint Reilly, who gave nearly $60,000 to Democrat organizations, along with $5,000 to Barack Obama, whose administration vehemently promotes abortion and homosexual “marriage” and has continually opposed religious liberty. Reilly gave $4,600 to Pelosi as well.

Another individual in the ad attacking the archbishop who also gave big campaign donations to California pro-abort Democrats was Lou Giraudo, a former city commissioner and business executive who contributed more than $24,000 to Nancy Pelosi, $6,000 to Dianne Feinstein and $4,300 to Barbara Boxer.

Nancy Pelosi herself challenged the archbishop for his stance on Catholic teaching last year when she tried to pressure him out of speaking at the March for Marriage in Washington D.C., claiming the event was “venom masquerading as virtue.”

The archbishop responded in a letter that he was obliged “as a bishop, to proclaim the truth—the whole truth—about the human person and God’s will for our flourishing ... especially the truth about marriage as the conjugal union of husband and wife.”

The April 16 ad attacking Archbishop Cordileone was the latest in an ongoing assault since the archbishop took steps in February to strengthen Catholic identity in the schools and clarify for faculty and staff in handbooks and contract language the long-standing expectation that they uphold Church principles. 

It said Archbishop Cordileone has “fostered an atmosphere of division and intolerance” and called on Pope Francis to remove him.

“Holy Father, Please Provide Us With a Leader True to Our Values and Your Namesake,” the ad said. “Please Replace Archbishop Cordileone.”

The Confraternity of Catholic Clergy (CCC), a national association for priests and deacons, condemned Archbishop Cordileone’s harassers in a statement, saying the archbishop “teaches in conformity to the Catechism of the Catholic Church.”

“The character assassination and uncharitable venom being cast upon a bishop merely defending the doctrines of his religion is appalling and repugnant,” the CCC said. 

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“It is totally inappropriate, improper and unjust for the media and others to vilify and brutally attack him when he is doing precisely what an ordained minister and pastor of souls is obligated to do,” the group stated, “namely, speak the truth in season and out of season.”

Those behind the attack ad said the proposed handbook language was mean-spirited, and that they were “committed Catholics inspired by Vatican II,” who “believe in the traditions of conscience, respect and inclusion upon which our Catholic faith was founded.”

The Archdiocese of San Francisco denounced the ad upon its release, saying it was a misrepresentation of Catholic teaching and the nature of the teacher contract, and a misrepresentation of the spirit of the Archbishop.

“The greatest misrepresentation of all is that the signers presume to speak for “the Catholic Community of San Francisco,” the archdiocese responded. “They do not.”

The CCC pointed out that just as physicians are expected to be faithful to the Hippocratic Oath, bishops, priests, and deacons are expected to be faithful to the Church, its teachings and its authority, “since their objective is the salvation of souls, not a popularity contest.” 

In openly declaring their support for Archbishop Cordileone, the group urged the media and others to show “prudence, civility, and fair-mindedness” toward those with whom they disagree.

“He took an oath to be faithful to the Gospel,” the Confraternity stated of Archbishop Cordileone, “and in the words of the disciples in the New Testament, ‘better to obey God than men.’”

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