The top Republican on the House
Judiciary Committee said Thursday that the Obama administration is fueling speculation about
Supreme CourtJustice Elena Kagan’s impartiality because it won’t turn over documents detailing her role in crafting the legal strategy to defend the health care law while she was serving in the administration.
Rep. Lamar Smith, the committee chairman, told Attorney General
Eric H. Holder Jr. that emails show
Justice Kagan took an interest in the case in January 2010, when she was solicitor general, and he demanded to know what role she played between then and March 2010, when Mr. Obama tapped her to sit on the
high court.
“The issue is, how involved was she in health care discussions between Jan. 8 and March 5? Just as President
Nixon had an 18½-minute gap, does
Ms. Kagan have a two-month gap?”
Mr. Smith, Texas Republican, said.
Conservative groups have called for
Justice Kagan to recuse herself from ruling on the case challenging the constitutionality of Mr. Obama’s health care law, which the
Supreme Court last month said it will consider next year.
Mr. Smith has requested a fuller explanation of
Justice Kagan’s role. He said the
Justice Department had denied his request but never cited any legal privilege to withhold information.
Mr. Holder told the
committee that department officials tried to wall off
Justice Kagan from conversations once they knew she was under consideration for the
Supreme Court.
“My memory is whenever we had conversations about the health care bill, then-Solicitor General
Kagan was not present,” he said.
But
Mr. Smith said that walling off wouldn’t have occurred until March, leaving the two-month gap he questioned.
Mr. Holder also again declined to cite a specific legal privilege that would allow him to withhold documents or prevent committee investigators from interviewing department employees about
Justice Kagan’s involvement. Instead, the attorney general said he has “separation of powers” concerns.
Mr. Smith said that doesn’t rise to the level of an actual claim of privilege, and said he will schedule the interviews with investigators.
Asked by The Washington Times whether Mr. Obama would support turning over documents covering the two-month period in question, presidential spokesman Jay Carney said Congress already has fully vetted Justice Kagan’s views.
