Bench Memos

House Gives DOJ Ultimatum on Releasing Kagan Docs

Back in July, Rep. Lamar Smith, chairman of the House Judiciary Committee, asked Attorney General Eric Holder for key documents as well as interviews with certain DOJ staff pertaining to Justice Kagan’s involvement with Obamacare. The purpose of the request was to determine whether she should disqualify herself from considering any of the cases challenging the law when they reach the Supreme Court.

DOJ responded last week. It only took the “most open and transparent administration in history” four months to tell the House to pound sand. Apparently those four months weren’t enough to manufacture some legal pretense or privilege for denying the request, though, because they opted to say that complying with the request would be “unseemly” rather than citing to constitutional reasons for their refusal. Chairman Smith wasted no time informing DOJ that they have one week to produce the information or respond with some legally intelligible reason for refusing. 

The reason for DOJ’s delay and failure to assert legal privilege seem pretty clear to me: Asserting a legal privilege would push the administration too far in the direction of acknowledging that Kagan and her former DOJ colleagues haven’t been forthcoming about the extent of her involvement with the law and related litigation. From a tactical perspective, delaying this process makes it less likely that more information will be revealed around the time the Supreme Court decides to review the lower court rulings holding that Obamacare is unconstitutional.

When the Court meets to deliberate, the eight most senior justices will be joined by Elena Kagan, a justice who was directly involved with the legal challenges to Obamacare in her role as President Obama’s solicitor general. DOJ might be able to obstruct until the case is squarely before the Court, but they can do nothing about the fact that information already revealed pursuant to FOIA and litigation justifies Kagan’s recusal.

As I will be explaining in coming days, Justice Kagan participation in the case raises profound questions about the legitimacy of the historically significant judgment that will be rendered by the Court. I am certain I will find agreement from organizations like the Brennan Center for Justice and Justice at Stake, given their strong support for fair and impartial justice.

Carrie Severino — Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

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