Tuesday, July 13, 2010

Do Republicans have a torpedo for Kagan's confirmation?

Do Senate Republicans on the Judiciary Committee have a torpedo that could sink Elena Kagan's all but otherwise certain confirmation to the U.S. Supreme Court?  They might, if Ms. Kagan and/or the Obama regime are forthcoming in answer to a recent letter transmitted by committee Republicans earlier today.

Led by ranking member Jeff Sessions (R-AL), every one of the Republicans signed off on a letter with 13 specific questions:

(CNSNews.com) - All seven Republicans on the Senate Judiciary Committee sent a letter today to Solicitor General Elena Kagan demanding information about whether she at any time as a member of the Obama administration discussed the suit filed by Florida and numerous other states challenging the constitutionality of the health-care law signed by President Barack Obama--an action that under federal law could require Kagan to recuse herself from the case if she is confirmed as a justice and it comes before the Supreme Court.

In the letter, the Judiciary Committee Republicans pose 13 questions to Kagan. The first seven directly probe whether she was in anyway involved in the administration’s planning or response to the lawsuit brought against Obamacare by Florida and other states. Questions eight and nine probe whether she discussed the underlying constitutional issues involved in the health care legislation. Question ten asks her why she should not recuse herself from ruling on Supreme Court challenges to the health-care law if she discussed it or the underlying constitutional issues during her service in the Obama administration.

Obamacare was the centerpiece policy goal of the regime, and its passage was the most painfully won prize of this Congress.  The regime is not about to give it up, and you can count on a tooth, nail and claw battle throughout the process of judicial review.  Is it likely that, as Solicitor General, Ms. Kagan was asked to provide advice on the suits filed by Florida et al and Virginia?  The answer is almost certainly "yes."  There's no way that an ambitious regime lawyer sat idly by whilst the regime determined its response to the lawsuits challenging the regime's most precious trophy.

The question is whether the regime invokes executive privilege or privilege of counsel in refusing to answer the GOP's letter.  If they do, all 41 Senate Republicans have sufficient grounds for supporting a filibuster of her nomination.  If they don't, then they disclose that yeah, she did provide counsel and well... yeah, she's gonna have to recuse herself from the case when the matter comes before the Court (and it almost certainly will).

Do the Senate Republicans get the answer?  Remember, Senator Sessions is himself a very good lawyer, having served as a US Attorney in Mobile.  Good lawyers never ask questions that they don't already know the answers to.

The regime probably won't answer.  The White House will probably claim privilege, giving the GOP a good reason to filibuster her and facing that, giving the White House a good reason to pull her nomination.

"Fire control, give me a solution on that target, load torpedo bay alpha and fire on my command."

Gimme some feedback in the comments.


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