- The Washington Times - Thursday, July 7, 2011

The chairman of the House Judiciary Committee has asked the Justice Department to turn over more specific information on Supreme Court Justice Elena Kagan’s role in crafting a legal defense of President Obama’s health care law when she served as the administration’s solicitor general.

In a letter to Attorney General Eric H. Holder Jr., Rep. Lamar Smith, Texas Republican, called on the department to deliver by July 29 all documents referring to meetings, conversations, pending litigation or suggested recusals then-Solicitor General Kagan had regarding the health care law.

“In recent weeks, questions have been raised about whether Justice Kagan’s prior work on what became the Patient Protection and Affordable Care Act (PPACA) while serving as solicitor general should disqualify her from hearing challenges to its constitutionality,” Mr. Smith wrote.

Mr. Smith said that during her Senate confirmation, Ms. Kagan denied she had ever been “asked about her opinion” or “offered any views or comments” regarding the underlying legal or constitutional issues related to any proposed health care legislation. But, he said, documents released by the Justice Department in response to a Freedom of Information Act request “raise questions about that unequivocal denial.”

A Supreme Court challenge to Mr. Obama’s health care law is considered a near certainty in the coming months.

Last month, 49 Republican lawmakers asked the Judiciary panel to “promptly investigate” Justice Kagan’s role in defending the legality of the health care law, contending that new Justice Department documents showed she “actively participated with her Obama administration colleagues in formulating a defense” for the law.

The lawmakers, including 10 doctors, said the documents raised “serious questions” about Justice Kagan’s ability to “exercise objectivity” in any case involving the PPACA that comes before the Supreme Court.

One of those doctors, Rep. John Fleming, Louisiana Republican, said he was “confident that this investigation will uncover even more evidence that Justice Kagan was involved in Obamacare defense activities, contrary to her Senate confirmation testimony.”

“How can any reasonable person believe that Justice Kagan can be impartial on any Obamacare case if she was involved in formulating a defense of this destructive law?” he said.

Mr. Fleming said the watchdog group Judicial Watch, along with the Media Research Center, obtained Justice Department emails documenting exchanges between then-Solicitor General Kagan and her colleagues regarding planning sessions for coordinating the Obama administration’s legal defense of “Obamacare.” He said the emails “leave little doubt” Justice Kagan actively participated in formulating the administration’s defense strategy.

In their letter, the 49 lawmakers said that it is “evident that Justice Kagan was involved in PPACA defense activities to a degree that warrants her disqualification from related proceedings as specified” by the law.

Justice Department spokeswoman Tracy Schmaler said Justice Kagan “did not play any substantive role in litigation challenging health care reform legislation, and the documents that were released reflect that.”

Justice Kagan was named to the court by Mr. Obama in May 2010.

• Jerry Seper can be reached at jseper@washingtontimes.com.

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