Republicans Finally Get Tough With Obama

by: Ben Johnson

After months of stonewalling, ethical violations, and blatant
defiance of the Constitution, could it be that Republicans have finally
gotten tough with Barack Obama? They are stepping up to demand the
recusal of Elena Kagan in the pending health care case soon to be heard
by the Supreme Court, the firing of Eric Holder over Operation Fast and
Furious, and the return of their Constitutionally delegated authority to
wage war.

Senate Republican leaders Mitch McConnell, Chuck Grassley, Mike Lee, and Jon Kyl signed a letter
to Attorney General Eric Holder on November 18 calling him to disclose
all information about Elena Kagan’s involvement in formulating the
administration’s legal case defending health care reform, often called
ObamaCare, as they believe it present a clear conflict of interest that legally requires her recusal from the case.

The letter takes Holder to task for stonewalling their investigation to date:

“Unfortunately, your Department has rejected all Congressional oversight
requests for information about her role in the Obama Administration’s
defense of this law. You recently told the Senate, incredibly, that you
were not even aware of Congressional requests on this topic, and that
your Department handled her duties as relates to such matters in a way
that is belied by the facts, namely that you physically removed her from
all meetings discussing litigation,” the senators told Holder.”

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.”

To assess whether Kagan met this standard, House Judiciary Chairman Lamar Smith, at the urging of 49 members of Congress,
requested all documents related to the services Kagan rendered as
then-Solicitor General. Attorney General Holder allowed the inquiry to
languish for four months. On Octobery 27, Assistant Attorney General
Ronald Weich balked, saying the DoJ would provide nothing to the “unseemly” request.

Earlier this month, Holder testified:

“Well, I can tell you that certainly one of the things
that we did while she was solicitor general was to
physically–physically, literally–move her out of the room whenever a
conversation came up about the health-care reform legislation,” said
Holder. “I can remember specific instances in my conference room where,
when we were going to discuss that topic, we asked Elena, Justice Kagan,
to leave and she did.”

However, Kagan admitted,
“I attended at least one meeting where the existence of the litigation
was briefly mentioned, but none where any substantive discussion of the
litigation occurred.”

In today’s world, one need not be physically present in the room to participate in the discussion.

Kagan insisted her role was not “substantial,” but as the senators
point out federal law “does not require the government official’s past
participation in that same matter to be ‘substantial’ (as determined by
the self-same government official).”

An e-mail trail since uncovered by Judicial Watch proves Kagan was
indeed involved in the administration’s legal arguments to defend its
signature legislative accomplishment. Neal Katyal, then Kagan’s Deputy
Solicitor General, wrote in an e-mail, “Elena would definitely like OSG
[the Office of Solicitor General] to be involved in this set of issues…we will bring Elena in as needed.”(Emphasis added.)

However, the administration has withheld many more documents, including 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.

Elena Kagan wrote one of the four being withheld.

Based on this record, the senators write, “it is apparent that she
herself enthusiastically supported this legislation as a member of this
Administration [sic.] which is now defending it.”

Trying to anticipate GOP success, the Left has doubled the ante,
demanding two Originalists be forced from the court. Al Sharpton wrote in The Huffington Post
last week that both Clarence Thomas and Antonin Scalia must recuse
themselves, as well, although neither expressed any opinion nor lent
their assistance to those trying to overturn the law.

The law is clear. Kagan must step down, and Republicans are creating
as strong a case as possible to force her to do so. Of course, if they
had this courage when she was nominated for the High Court, this
rear-guard action would be unnecessary.

Because of his role in stonewalling on Kagan, the Black Panther voter
intimidation case, and Operation Fast and Furious, the GOP is
intensifying pressure on the administration to fire Attorney General
Eric Holder. Presidential candidates Michele Bachmann and Rick Perry join 51 other Congressmen
in calling on Holder to quit or resign. Any call for the Obama
administration to comport itself well will fall on deaf ears if
unaccompanied by action.

Thankfully, the House Republican enforcer, Darrell Issa, sent a clear
message to Barack Obama this weekend: Fire Holder or you are going
down…