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Bench Memos

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See No Evil . . .



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Attorney General Eric Holder spent another few hours in the hot seat today during oversight by the Senate Judiciary Committee. His convenient response when grilled on what he knew about Operation Fast and Furious was that he simply can’t be bothered to read his own mail. I know, I know, it’s addressed to him, but that’s why he has staff, right? In truth, it’s hard to imagine how someone who spends so much time putting out the fires of controversy about his handling of DOJ could have any time left to actually run the department.

So when Sen. Mike Lee asked him whether his office was planning on ever responding to the request from the House Judiciary Committee for documents and interviews relating to Justice Kagan’s activities involving Obamacare-defense strategizing when she was solicitor general, it wasn’t a surprise to see Holder reverting to a plea of ignorance. When Senator Lee filled him in, Holder noted that he recalled then-SG Kagan being asked to leave the room whenever the health-care defense was discussed. It’s not surprising, given his unfamiliarity with the topic, that he also was unaware of Kagan’s own testimony that she attended at least one meeting in which the health-care litigation was discussed. 

This all bolsters the picture of Kagan’s involvement that is crystallizing as information slowly drips out of the Department of Justice. After supervising initial strategy meetings on Obamacare defense, Kagan was tipped off that she was on the short list for the Court. She knew that being able to sit on the case would be important — perhaps decisive — to her nomination by a president intent on preserving his signature legislation. So she started to withdraw from that case in particular, even before her nomination (after all, she testified that she stopped attending the AG’s meetings in early to mid April, but wasn’t nominated to the Court until May). Unfortunately for her, that action came too late, because she had already participated in the department’s defense of the case starting as early as January that year and continued receiving e-mails with internal deliberations about the case well into March.

Later today JCN will be releasing a white paper detailing Kagan’s involvement in the Obamacare defense and making the case for Justice Kagan’s recusal. Perhaps we’ll send a copy to Eric Holder so he can bone up on the issue. I’m sure his staff will enjoy the read.



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