Judiciary Chairman Withholding Judgment on Whether Kagan Should Recuse from Health-Care Cases

By Edwin Mora | July 18, 2011 | 12:51 PM EDT

House Judiciary Chairman Lamar Smith (R.-Texas) (AP photo/Drew Angerer)

(CNSNews.com) - House Judiciary Chairman Lamar Smith (R-Texas) is withholding judgment on whether Supreme Court Justice Elena Kagan should recuse herself from judging lawsuits that were filed against the health-care law that President Barack Obama signed while Kagan was serving as the Obama administration's solicitor general and was charged with defending the administration’s position in federal court disputes.

Smith sent a letter to Attorney General Eric Holder on July 6 asking that Holder provide “relevant documents and witness interviews in order to properly understand U.S. Supreme Court Justice Elena Kagan’s involvement in health care legislation or litigation while serving as United States Solicitor General.” The letter requested that Holder provide the materials and arrange the interviews by July 29.

At issue is 28 U.S.C. 455, the federal law that governs when a Supreme Court justice must recuse from a case. The law says: “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”

The law also says that a justice shall recuse from a case where “he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy.”

In the questionnaire she filled out for the Senate Judiciary Committee during her confirmation process, Kagan said she would be governed by the “letter and spirit” of 28 U.S.C. 455 in making recusal decisions.

As Smith pointed out in his July 6 letter to Holder, Kagan also told the Senate Judiciary Committee that while she was solicitor general she had never been asked or offered her opinion about the underlying legal issues related to any proposed health care legislation.

“During her Senate confirmation, then-Solicitor General Kagan answered ‘no’ when questioned about whether she had ever been ‘asked about [her] opinion’ or ‘offered any views or comments regarding the underlying legal of constitutional issues related to any proposed health care legislation … or … potential litigation resulting from such legislation.

“Yet,” Smith wrote, “documents released by the Department in response to a recent Freedom of Information Act requests raise questions about that unequivocal denial.”

[The FOIA request reference in Smith's letter was originally filed by CNSNews.com in May 2010. The Media Research Center--CNSNews.com's parent organization--ultimately filed suit against the Justice Department last fall in the U.S. District Court for the District of Columbia, seeking compliance with the FOAI request, and on March 15, the department released 66 pages of internal department emails in partial response to the CNSNews.com FOIA. The MRC, joined by Judicial Watch, is currently asking the federal court to require the Justice Department to release additional documents.]

Last week, CNSNews.com asked the Judiciary Committee if Smith believed that Kagan’s  “impartiality might reasonably be questioned” in the cases challenging President Obama’s health-care law, thus triggering the recusal requirement in 28 U.S.C. 455.

A House Judiciary Committee aide, responding for Smith, said that the chairman is withholding judgment on that question until the committee is able to review the materials it has requested from the Justice Department.

“The reason why we wrote to the Justice Department is because we don’t feel like there is sufficient information out there to make a decision one way or the other,” the aide told CNSNews.com.

“We don’t know what meetings she was involved in,” said the aide. “We know her role as [President Obama’s] Solicitor General means she very well may have played a role in whether or not somebody asked about the constitutionality or the legal defense for Obamacare while they were working on the legislation or kind of working with Congress on the legislation.

“Most likely that request goes to the Solicitor General’s Office, as to whether or not it goes to the actual Solicitor General herself, we don’t know the answer to that question until we see the documents from the Justice Department,” said the aide.

“So we haven’t weighed in one way or the other as to whether or not we think she should be recused because we’re seeking additional information,” said the aide.

The Judiciary Committee aide said that the fact that Chairman Smith had sent the July 6 letter to Holder seeking documents and witness interviews did not mean the committee was investigating anything.

“A letter from our committee is simply a letter, it is not an investigation,” the aide said. “We send letters all the time, it does not mean we’re investigating Kagan, it does not mean we’re investigating anything, it literally does mean we’ve asked the Justice Department to give us the documents.

“If they don’t give us documents, that’s a whole another story, then we may take additional action, but we always give them the benefit of the doubt and give them the opportunity to respond first,” said the aide.

Chairman Smith sent the letter to Holder in response to a letter he had received on June 24 from 49 members of the House of Representatives, led by Rep. John Fleming (R.-La.).

"We respectfully call upon the House Judiciary Committee to promptly investigate the extent to which U.S. Supreme Court Justice Elena Kagan was involved in preparing a legal defense of the Patient Protection and Affordable Care Act (PPACA) during her tenure as Solicitor General," the 49 lawmakers wrote in a letter to Smith (R.-Texas) and Rep. John Conyers (D.-Mich.), the ranking member of the Judiciary Committee.

The 49 lawmakers said in this letter to Smith and Conyers that they believed that the evidence already available indicated that under 28 U.S.C. 455 Kagan should recuse herself from cases related to President Obama’s health-care law--formally known as the Patient Protection and Affordable Care Act (PPACA).

"Even from the limited number of DOJ emails released to date through a Freedom of Information Act lawsuit, it is evident that Justice Kagan was involved in PPACA defense activities to a degree that warrants her disqualifications from related proceedings as specified by Section 455," they wrote.

In addition to Rep. Fleming, signers of this letter included, among others, House Oversight Chairman Darrell Issa (R.-Calif.), House Republican Policy Chairman Tom Price (R.-Ga.), Rep. Michele Bachmann (R.-Minn.) and Rep. Ron Paul (R.-Texas).