Bench Memos

House Weighs In on Kagan Recusal

In response to a letter from 49 members of the House expressing concerns about Justice Kagan’s involvement in the legal defense of Obamacare, House Judiciary Committee chairman Lamar Smith has asked Attorney General Eric Holder for key documents as well as interviews with key DOJ staff. The purpose of the request is to determine whether she should disqualify herself from considering any of the cases challenging the law when they reach the Supreme Court. 

Unlike the baseless accusations being leveled against Justice Thomas on a regular basis, the situation with Kagan raises serious questions about her fitness to hear any cases challenging Obamacare, all stemming from the fact that she was far more involved in the defense of that law than she implied during her hearings. And the only way for the public to know whether that involvement rises to the level of demanding her disqualification is for DOJ to turn over documents and truthfully answer the committee’s questions.  

JCN (of which I am chief counsel) has submitted a FOIA request asking for public records, but it has now been more than three months and the “most transparent administration in history” still hasn’t produced anything. CNSNews and Judicial Watch uncovered some very illuminating e-mails, but only after they took the Office of the Solicitor General to court over failure to respond to FOIA requests. Those e-mails prove that, at the very least, Kagan was communicating with her top deputy about the internal division of labor relating to the defense of Obamacare. 

It is possible that Kagan had no substantial involvement with the actual legal defense of Obamacare. But right now we find ourselves being told to trust the Obama administration on that point while reviewing e-mails that suggest she could have been having conversations of a far more significant nature. If Kagan was not involved at all, the administration has nothing to fear from releasing the relevant public records. But Lamar Smith and 49 other members of Congress still have some real questions that need to be answered.  

Kudos to the Judiciary Committee for beginning to conduct oversight. One can only hope they receive a timely and forthcoming response. In the meantime, I suspect some in the media will continue ignoring this issue while chasing their own tails to support bogus ethical allegations against the conservative justices on the Court. 


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