- The Washington Times
Thursday, June 30, 2011

Forty-nine Republican members of Congress have asked the House Judiciary Committee to “promptly investigate” Supreme Court Justice Elena Kagan’s role in preparing a legal defense for President Obama’s health care law when she served as solicitor general.

In a letter to committee Chairman Lamar Smith, Texas Republican, and the panel’s ranking Democrat, John Conyers Jr. of Michigan, the lawmakers said that “contradictory to her 2010 confirmation testimony before the Senate Judiciary Committee,” recently released Justice Department documents show that Justice Kagan “actively participated with her Obama administration colleagues in formulating a defense” for the law.

The lawmakers, including 10 doctors and GOP presidential candidates Rep. Ron Paul of Texas and Rep. Michele Bachmann of Minnesota, said the documents raise “serious questions” about Justice Kagan’s ability to “exercise objectivity” in any case involving the Patient Protection and Affordable Care Act (PPACA) that comes before the Supreme Court.

The letter was released Thursday by Rep. John Fleming, Louisiana Republican, who questioned whether Justice Kagan’s involvement in legal-defense activities while serving as solicitor general should warrant her recusal from Obamacare cases under federal law.

“Determining the extent of Justice Kagan’s involvement is imperative for Americans to have confidence in the impartiality of the Supreme Court,” said Mr. Fleming, a doctor. “Americans have a legitimate right to know the truth.

“If Obamacare is such a great law, like President Obama claims, then why are there dozens of lawsuits pending in the courts against it?” he said. “The reason is the law is fundamentally unconstitutional, and it is just a matter of time before it begins to unravel.”

In the letter, the lawmakers said the law establishes “unambiguous conditions on which federal judges must recuse themselves from proceedings in which their impartiality might be reasonably questioned.” They said that under the law, a justice should recuse in cases where they “served in government employment and in such capacity participated as counsel, advisor or material witness concerning the proceedings or expressed an opinion concerning the merits of the particular case in controversy.”

“Even from the limited number of DOJ emails released to date through the Freedom of Information Act lawsuit, 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, the letter said.

Justice Department spokeswoman Tracy Schmaler said, “During her tenure, former Solicitor General Elena 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 high court by Mr. Obama on May 10, 2010, to fill a vacancy created by the retirement of Justice John Paul Stevens. At the time, she was solicitor general. She was sworn in to the Supreme Court on Aug. 7, 2010, by Chief Justice John G. Roberts Jr. Because of her role as the government’s chief legal representative as solicitor general, she recused herself from 25 of the 51 cases that the court accepted through December.

During her July 2010 confirmation hearings, Republican lawmakers invoked committee rules allowing for the confirmation vote to be delayed for a week. The request - by Sen. Jeff Sessions of Alabama, the committee’s ranking Republican - gave Republicans more time to review her record.

Mr. Sessions said he wanted more information about her role in forming strategies to stop legal challenges to Mr. Obama’s health care bill. He further queried as to whether such involvement would require Justice Kagan to recuse herself from any future cases as a Supreme Court justice.

Ms. Kagan told the committee that she would weigh recusing herself from matters related to the health care law on a case-by-case basis. She said in written responses that she had no involvement in developing the government’s legal responses and was never asked her views or offered them.

She said she attended at least one meeting where the litigation was briefly mentioned, and that the Justice Department filed a number of documents in the case during her tenure, but she had no firsthand knowledge of any of the filings.

Many of the documents outlining Justice Kagan’s involvement in health care legislation while solicitor general were released in May by Judicial Watch, the Washington-based legal-watchdog organization, through a Freedom of Information Act (FOIA) lawsuit.

Mr. Fleming said the emails “leave little doubt that Justice Kagan actively participated in formulating the administration’s defense strategy of Obamacare during her tenure as solicitor general.”

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

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