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On today’s edition of Coffee and Markets, Brad Jackson and Ben Domenech are joined by Carrie Severino, to discuss Elena Kagan’s involvement in Obamacare while serving as Solicitor General, what inside knowledge she may have, and why she should recuse herself from hearing this case as a sitting Supreme Court Justice.

We’re brought to you as always by BigGovernment and Stephen Clouse and Associates. If you’d like to email us, you can do so at coffee[at]newledger.com. We hope you enjoy the show.

Related Links:

Elena Kagan: The Justice Who Knew Too Much
Judicial Crisis Network
Kagan controversy good for the public, court watchers say
Carrie Severino at the Judicial Crisis Network
NRO: Bench Memos

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The White House

Office of the Press Secretary

For Immediate Release
July 14, 2011

Press Conference by the President

Fort Belvoir Golf Club Locker Room

1:03 P.M. EDT

THE PRESIDENT:  Good afternoon.  As you can see, we’re trying something different today.  You’re in the White House Briefing Room, and I’m here at the club.   Jay thought things would be more pleasant if he put some distance between me and all you bird dogs.

Anyway, I just finished eighteen holes and figured I’d do another presser to light a fire under McConnell and Boehner.  Also, I have several announcements to make before I evade your questions.

First, the putt I made on #3 had to be at least 40 feet, and I . . . . [looks off screen] Huh?  Ok, sorry Jay.

As you know, Republicans refuse to raise taxes on entrepreneurs who selfishly exploit the system to create non-green businesses for profit.  My pleas to House Speaker Boehner to punish these start-ups—uh, I mean upstarts—for chasing their dreams instead of saving the planet have been rebuffed.  I am still hopeful we can resolve this issue my way in a bipartisan fashion.

Secondly, next Wednesday I’ll be conducting a televised “Conversation with Older Americans” in senior centers and convalescent homes across the country.  Attendance is mandatory for those on Social Security, except for individuals not expected to live through November 2012. (more…)

Back in May Judicial Watch uncovered explosive documents from the Obama Department of Justice (DOJ) indicating Supreme Court Justice Elena Kagan was heavily involved in crafting a defense for Obamacare while she served as Solicitor General. The documents appear to contradict Kagan’s contention that she was merely an uninvolved bystander. Well, now Congress has joined the effort to get to the truth in the matter, calling for a full investigation.

According to  The Washington Times:

Forty-nine Republican members of Congress have asked the House Judiciary Committee to “promptly investigate” Supreme Court Justice Elena Kagan’s role in preparing a legal defense for President Obama’s health care law when she served as solicitor general.

In a letter to committee Chairman Lamar Smith, Texas Republican, and the panel’s ranking Democrat, John Conyers Jr. of Michigan, the lawmakers said that “contradictory to her 2010 confirmation testimony before the Senate Judiciary Committee,” recently released Justice Department documents show that Justice Kagan “actively participated with her Obama administration colleagues in formulating a defense” for the law.

Here’s a copy of the letter that was issued from the congressional office of Rep. John Fleming, who is also a physician, by the way. The letter states: “This revelation raises serious questions about Justice Kagan’s ability to exercise objectivity in any case relevant to [Obamacare] that comes before the U.S. Supreme Court.”

(more…)

From CNSNews “It is called the Golden Rule,” said Graham. “‘Do unto others as you would have them do unto you.’ That is probably one of the most powerful statements ever made. It is divine in its orientation, and it is probably something that would serve us all well if we thought about it at moments such as this.”

Graham also said Kagan “meets the test” the Framers envisioned for a Supreme Court Justice.

“I am going to vote for Elena Kagan because I believe constitutionally she meets the test the Framers envisioned for someone to serve on the Court,” said Graham. “I don’t think the Framers ever envisioned Lindsey Graham from South Carolina voting no because President Obama picked someone who is clearly different than I would have chosen.” (more…)

WASHINGTON (AP) – The Senate has confirmed Elena Kagan as the 112th justice and fourth woman to serve on the Supreme Court.The vote was 63-37 for President Barack Obama’s nominee to succeed retired Justice John Paul Stevens.

Five Republicans joined all but one Democrat and the Senate’s two independents to support Kagan. In a rarely practiced ritual reserved for the most historic votes, senators sat at their desks and stood to cast their votes with “ayes” and “nays.” (more…)

Cameras are everywhere today: In convenience stores, at intersections, the workplace, your computer, your cellphone, ATM machines. There’s even been a camera in news anchor Katie Couric.

Yet there’s one place cameras have never been allowed: The U.S. Supreme Court. Just what are Supreme Court justices hiding beneath their robes that they continue to say no to cameras in their courtroom?

For decades the White House and Congress have opened their public business to television cameras, but the judicial branch has remained staunchly against the practice. As C-SPAN’s Brian Lamb tells Reason.tv, the justices have rebuffed every attempt to videotape the oral arguments phase of Supreme Court proceedings. On this, an often-divided court remains unanimous, even if the arguments offered up Justices Scalia, Breyer, Thomas, Kennedy, and others remain even weaker than the majority’s logic in their awful Kelo decision, which legitimated eminent domain abuse.

Both Sonia Sotomayor and Elena Kagan have spoken in favor of cameras in the Supreme Court. Can a new batch of justices, more attune to the benefits of transparency, finally change things for the better?

(more…)

From the Associated Press:

Supporters and opponents of Elena Kagan painted vastly different portraits of the Supreme Court nominee on Tuesday, as they got their final say on the Senate floor before a near-certain vote to confirm her later this week.

Democrats praised President Barack Obama’s nominee as a highly qualified legal scholar who would add a sorely needed note of fairness and commonsense to a court whose conservative majority, they argue, has run amok. Republicans charged she’s an inexperienced cipher who would use her post to mold the law to her own liberal beliefs.

Despite the partisan divide, Kagan was on track for easy confirmation with the support of nearly all Democrats and a handful of GOP senators. In line to become the court’s fourth woman, she’s not expected to alter the ideological balance of the court in succeeding retired Justice John Paul Stevens, a leader of its liberal wing.

(more…)

Wednesday’s federal court decision on Arizona’s immigration law is being rightly criticized for a number of reasons. But there are three silver linings to this situation, which may result in the rule of law prevailing in the end.

On July 28, Judge Susan Bolton of the U.S. District Court for the District of Arizona issued a preliminary injunction—meaning she stopped from going into effect—most of the key provisions in Arizona’s new law. As I’ve written previously, this law should be held constitutional because it’s not an immigration law; it doesn’t determine who can become a citizen or who can be on American soil. Instead it’s a police-power law, where Arizona says that if you’re not permitted to be in this country, then you’re trespassing if you enter Arizona, and if you have a run-in with the cops for some other reason, then those cops can ask if you’re in this country illegally.

This is not an immigration law. It’s also not racist. It’s not racial profiling. And it’s not usurping the role of the federal government (which has abysmally failed here).

Instead, it’s an employment law and property law. That authority arises from Arizona’s police power to make laws for public safety, health, and societal welfare—which the Constitution reserves to the states through the Tenth Amendment.

But as bad as the federal court’s decision is, there are three silver linings to it that could see the rule of law prevail in the end, to the benefit of everyone—including foreigners who want to work here.

(more…)

Sometimes you hate being right.

In chapter 4 of our book, The Blueprint: Obama’s Plan to Subvert the Constitution and Build an Imperial Presidency, we make the point that Team Obama would try to pull a fast one when it comes to Obamacare’s individual mandate that everyone reading this blog post needs to buy health insurance, or be subject to a penalty payable to your good friends at the IRS.

We first made this argument in a column we coauthored with Senator Orrin Hatch in the Wall Street Journal back in January. Now this issue has suddenly exploded back into the news.

For months, Team Obama has been saying that the individual mandate is authorized by Congress’ power to regulate interstate commerce found in the Commerce Clause. We explain in the book why that argument is a loser in court, and that the White House would have to pull a bait-and-switch and suddenly argue that the mandate is a tax (violating Obama’s promise not to raise taxes on anyone making less than $250K per year).

Looks like we were right. In their first filing against the multi-state lawsuit challenging Obamacare, Team Obama is now arguing that the individual mandate is… a tax.

(more…)

Muslim civil rights group says movement fails to repudiate Islamophobia

WASHINGTON, July 15 /PRNewswire-USNewswire/ — A prominent national Muslim civil rights and advocacy organization today offered support for an NAACP resolution passed earlier this week asking the Tea Party movement to condemn racism within its ranks.

The Washington-based Council on American-Islamic Relations (CAIR) echoed concerns by delegates at the annual convention of the National Association for the Advancement of Colored People that the Tea Party has failed to repudiate elements within the movement who use racist or bigoted language.

SEE: NAACP Votes to Repudiate Racist Elements Within the Tea Party

http://tinyurl.com/25fyjtr

“If the Tea Party wishes to be taken seriously by mainstream Americans, it must repudiate all those who express or promote extremist, racist or bigoted views while claiming to be affiliated with the movement,” said CAIR National Communications Director Ibrahim Hooper.

Hooper noted the NAACP’s list of racist incidents tied to the Tea Party movement and cited similar examples of Islamophobic incidents, including: (more…)

I get a sense of the threat we may face, from a Supreme Court influenced by Elena Kagan, in her vow to defer to the political branches of government when interpreting the Constitution. This is a stance now being trumpeted by, e.g., environmental(ist) trade press outlets like E&E News. E&E runs a headline right now: “Kagan stresses deference to Congress, agencies” (subscription required).

That curious turn of phrase is Kagan’s own. It is not one nuanced with, say, a concern for divining legislative intent, but instead is a broad expression of deference to bureaucrats and politicians. Not to the Constitution. This is illuminating.

Taken in context, it is chilling. As Yahoo News writes:

“In her opening statement to the Senate Judiciary Committee, Elena Kagan vowed to show restraint and deference to Congress and the will of the people if ultimately confirmed to the Supreme Court, emphasizing the court “must recognize limits on itself and respect the choices made by the American people.”

“The Supreme Court is a wondrous institution,” Kagan said. “But the time I spent in other branches of the government reminds me that it must always be a modest one — properly deferential to the decisions of the American people and their elected representatives.”

The reporter first conveys the by now de rigueur implication of the attitude of restraint. But presumably in seeking to preempt claims that as someone with an extensive political history she would be an activist justice, Kagan manages to nonetheless betray the feared disregard for the Constitution.

The Supreme Court’s role is to apply the Constitution to laws enacted by the legislature, and to how those laws are being executed (or otherwise as the political branches choose to interpret or assert authority). It is the Constitution to which our non-political branch of government the courts, and certainly Supreme Court Justices, must defer.

Not the political branches. Political branches give us, say, Power Grabs. Courts are a check, to apply the Constitution to rein politicians and bureaucrats in.

(more…)

Supreme Court Justice nominee Sonia Sotomayor came off as a 2nd Amendment defender when she was being questioned during her confirmation hearings. She voted the other way when a gun rights case came to The Court.

(more…)

As the saying goes, this would be funny, if it was not so serious.  As each day of the Obama Administration wears on, the disconnect between reality and the Administration, between America and Washington, just keeps growing.  Consider these examples among many:

The Bank Bill:  Does it bother anyone that the same Congress that is giving us $1.5 trillion deficits as far as the eye can see is writing a 2000 page bill telling banks how to balance their books?  Unfortunately, by almost all accounts but Congress’ – this bill will make lending more difficult, and therefore prolong our recession, at the same time it exposes America to more bailouts for lack of leverage reform.

Russia Spies:  According to a Justice Department official the charges are “’the tip of the iceberg’ of a Russian intelligence conspiracy against the United States.”  Obama knew about the charges prior to a meeting with the Russian President but there is no word on whether he brought it up let alone scolded the Russians.  To the contrary, according to the State Department: “the arrests merely show that the two countries have not yet reached the level of “trust and cooperation” where they can be completely open with one another” and Obama “had no “personal reaction” to the case and that the arrests should not hurt the administration’s attempts to mend fences with Moscow. “I do not believe that this will affect the reset of our relationship with Russia,” according to White House Spokesman Gibbs.  I am certain Putin (and Iran, the Taliban, and anyone else fighting the US) are so very relieved.

The Oil Spill.  Government regulations push oil drilling farther and farther offshore thereby making it a riskier undertaking.  BP takes even more risks and together we get an enormous spill.  Obama says he is in charge of the clean-up – literally – yet day after day after day (70 to be exact) Obama stopped skilled, foreign parties from helping and allowed the damage to increase well and way beyond what should have been the case.  Obama wants BP’s shareholders (they own BP and they are the people paying the price) to pay for it all but shouldn’t BP’s shareholders wonder why the US government made the problem worse and, therefore, demand what lawyers call a finding of comparative fault? – thereby making the US government (you and me) pay for some of the damage?

(more…)

This week’s historic Supreme Court case on gun rights has pivotal implications for Elena Kagan’s Supreme Court confirmation hearings. From now on, the biggest battles over the Second Amendment will be won or lost in the Supreme Court.

In the 2008 case D.C. v. Heller, the Supreme Court held 5−4 that the Second Amendment secures an individual right to own a gun. But because the Bill of Rights only applies directly to federal laws (such as those in D.C.), Heller only made the Second Amendment a right against the federal government.

On June 28 of this year in McDonald v. Chicago, a new 5−4 Supreme Court decision held that the individual right to own a gun from Heller is a fundamental right, and as such extends through the Fourteenth Amendment as a right against state and local governments as well.

Justice Stephen Breyer wrote a dissent that Justices Ruth Bader Ginsburg and Sonia Sotomayor joined in full. (Justice John Paul Stevens wrote a separate dissent.) That dissent contains a telling revelation about Barack Obama’s Supreme Court.

When Sotomayor was nominated for the High Court last year, she was asked by Judiciary Committee Chairman Pat Leahy (D−VT) whether after Heller it is now a matter of settled law that the Second Amendment secures an individual right to own a gun. Her answer was clear and direct: “Yes, sir.”

(more…)

“We had to put the Second Amendment over the First Amendment.” (7:21)

Yes, it’s common sense to credit the NRA for its involvement with the McDonald vs Chicago case and its fight for the Second Amendment, which, I think, would have been infringed upon even greater longer ago without the NRA.

However.

I don’t like what I’m seeing with the NRA on this – and their wish to protect the Second Amendment by way of seeking exemption under DISCLOSE is nullified if they traded exemption for silence on the hearing of an anti-gun Supreme Court nominee Elena Kagan as part of of the deal.

You can’t be non-partisan because the Second Amendment, in current society, is not a bipartisan issue.

By silencing yourself, ironically, on an issue for exemption so that you don’t have to be silenced later on is playing with the First Amendment whether you realize it or not.

(more…)

From Reuters:

Republicans have questioned whether Kagan, a former Harvard law school dean who has served in the past two Democratic administrations, is driven more by politics than law.

Democratic backers call the 50-year-old nominee, who last week received the American Bar Association’s top rating, a perfect fit for the highest U.S. court.

Obama has faced a Republican wall of opposition this election year on issues like healthcare, climate change and immigration.

But barring unforeseen bombshells at the hearing, at least a few members of the opposition party are expected to join Democrats and confirm Kagan to replace retiring Justice John Paul Stevens, the court’s leading liberal.

(more…)

Left wing blogs have their dander up. They’re attacking me for saying the Elena Kagan favors cloning human beings. Once again, they are trying to confuse the public about what’s involved in cloning humans. Just because they favor killing the embryonic human being after they are done experimenting upon it, but before implanting it in a woman’s womb, they think they are against cloning humans. But they’re not. And neither is Kagan.

It’s almost the same thing as when semantic gymnasts in the pro-cloning camp say they’re not cloning humans, they’re just doing “somatic cell nuclear transfers (SCNT).” In fact, that’s the longer, more technical description of what cloning is.

The Clinton-appointed National Bioethics Advisory Commission (NBAC) recognized this simple fact in 1997—before political correctness overtook all these discussions:

The Commission began its discussions fully recognizing that any effort in humans to transfer a somatic cell nucleus into an enucleated egg involves the creation of an embryo, with the apparent potential to be implanted in utero and developed to term.

This is not conservative doctrine. Not Christian dogma. This is simple, scientific fact. It used to be recognized by all until the left muddied the waters.

(more…)

Thirty-seven current Democrat U.S. Senators, along with former Senators Barack Obama and Joseph Biden, believed that Robert Bork, Clarence Thomas, John Roberts, or Samuel Alito were not sufficiently qualified to be on the Supreme Court. Using their own standards, Elena Kagan is also not sufficiently qualified and these 39 Democrats therefore should not support her nomination.

Bork, Thomas, Roberts and Alito, at the time they were nominated for the Supreme Court, had significantly more experience, scholarship, and/or accomplishments than Kagan does now.

Bork served in the U.S. Marine Corps, in private practice for several years, as U.S. Solicitor General, as one of America’s most influential antitrust scholars, and as an U.S. circuit judge. Thomas served as Missouri’s Assistant Attorney General, in-house counsel for a major corporation, a U.S. Senate aide, Chairman of the Equal Employment Opportunity Commission, and a U.S. circuit judge. Roberts served as Special Assistant to the U.S. Attorney General, Associate White House Counsel, Principal Deputy Solicitor General, and head of the appellate practice at Hogan & Hartson (now Hogan Lovells), which was the oldest major law firm headquartered in Washington, D.C. and which now has some 2,500 attorneys worldwide. Roberts also argued dozens of Supreme Court cases and was an U.S. circuit judge prior to his Supreme Court nomination. Alito, among other things, argued a dozen Supreme Court cases as Assistant to the U.S. Solicitor General, was U.S. Attorney for the District of New Jersey, and was an U.S. circuit judge.

Kagan does not have this same level of accomplishment.

(more…)

Rob and Peter fly Steyn-less this week. Nonetheless, sharp analysis of the Kagan nomination from Richard Epstein and John Yoo and a wide ranging conversation with Fred Thompson who discusses his new book, the state of the nation and the world at large, his aspirations for higher office, and his thoughts on the cancellation of a certain TV show. As always, join the conversation on our Facebook page or on Twitter (@ricochet) or write us at podcast@ricochet.com.

Newt Gingrich is among those who have noted a serious chink in the protective armor the Obama administration and Elena Kagan’s other defenders have tried to throw up around her Supreme Court nomination.  The vulnerability has taken on increased importance insofar as it involves one of the few concrete positions or actions taken by the nominee in a long career almost completely bereft of written or spoken positions that shed light on her judgment and potential judicial philosophy.

It turns out that, at the very moment Ms. Kagan was pushing aggressively to remove military recruiters from the Harvard Law School campus during her tenure as its dean, she was very supportive of having what amounted to Saudi recruiters ensconced there for the purpose of enlisting some of the nation’s finest young lawyers to work for the industry known as Shariah-Compliant Finance (SCF).

The first insight this record suggests is that Ms. Kagan’s true motivation in barring the armed forces was, indeed, an animus towards the military, rather than concern about its supposed mistreatment of homosexuals.  After all, the theo-political-military-legal code that authoritative Islam calls “Shariah” and that is the law of the land in Saudi Arabia is infinitely more homophobic than the Pentagon’s efforts to enforce the U.S. statute that prohibits avowed gays and lesbians from serving in uniform.  The former requires the murder of homosexuals; the latter simply kept them out of the ranks.

Ms. Kagan’s troubling tolerance of Shariah would, of course, have vastly more far-reaching implications should she reach the Supreme Court.  Consider several examples of her direct and indirect role in its insinuation into key U.S. institutions – several of which could be matters upon which the Court may have to rule:

(more…)