Newly released emails have renewed calls for inquiry into Supreme Court Justice Elena Kagan’s involvement in defending the Obama administration’s health care reforms while she was solicitor general.
Alabama Republican Sen. Jeff Sessions issued a letter to Attorney General Eric Holder Tuesday requesting answers to Kagan’s involvement after emails revealed Kagan enthusiastically supporting President Obama’s Patient Protection and Affordable Care Act, as well as possibly orchestrating legal defenses for the act.
The emails, obtained by Judicial Watch and originally reported by CNSnews.com, show Kagan and other administration officials setting up meetings to discuss how to counter legal challenges to the health care law.
In a March 21, 2010 email exchange with Harvard Law professor Laurence Tribe, who also served in the Justice Department at the time, Kagan expressed enthusiasm — so much so that it apparently required two exclamation points — at the news of the law’s impending passage through Congress.
“I hear they have the votes, Larry!! Simply amazing,” Kagan wrote to Tribe in one of the emails.
At issue is whether Kagan, if she did work on the Obama administration’s legal defense strategy for the law, should recuse herself from the upcoming Supreme Court case to determine its constitutionality.
According to 28 USC 455, Supreme Court justices must recuse themselves from “any proceeding in which his impartiality might reasonably be questioned.” The law also says justices must recuse themselves if they have “expressed an opinion concerning the merits of the particular case in controversy” while serving in government employment.
During her confirmation process in July, Republicans on the Senate Judiciary Committee asked Kagan if she had offered or been asked her opinion on the health care law or its underlying constitutionality.
She answered, “No.”
But the same day as her emails with Tribe, Kagan had an email exchange with her deputy, Neal Katyal. This email chain, titled “Health care litigation meeting,” regarded a meeting the next day with a group of Justice Department lawyers to plan for expected litigation challenging the law.
Katyal forwarded the email chain to Kagan, writing: “This is the first I’ve heard of this. I think you should go, no? I will, regardless, but feel like this is litigation of singular importance.”
“What’s your phone number?” Kagan replied.
Two weeks after the Senate passed the health care legislation in January 2010, Brian Hauck, senior counsel to Associate Attorney General Tom Perrelli, emailed Kagan’s principal deputy, Katyal, to tell him that Perrelli wanted “to put together a group to get thinking about how to defend against the inevitable challenges to the health care proposals that are pending.”
Katyal replied, “Absolutely right on. Let’s crush them. I’ll speak to Elena [Kagan] and designate someone.”
Two hours later, Katyal emailed Hauck: “Brian, Elena would definitely like OSG [Office of the Solicitor General] to be involved in this set of issues. I will handle this myself, along with an Assistant from my office [REDACTED] and will bring in Elena as needed.”
Testifying during Kagan’s confirmation hearings, Attorney General Eric Holder said he was not aware of a request by the House Judiciary Committee for documents related to Kagan’s involvement in the health care legislation. Holder also stressed that the Justice Department took pains to separate Kagan from any matters relating to the law.
In a letter released Tuesday, Sessions pressed Holder for more answers about Kagan’s work while solicitor general. Sessions called the Justice Department’s failure to disclose the emails during Kagan’s confirmation hearing “unacceptable.”
“I am deeply disturbed by these developments and believe that the Justice Department should have provided these documents to the Senate Judiciary Committee during Justice Kagan’s confirmation hearing,” Sessions said in a statement. “The Department’s failure to provide this information to Congress and to comply with FOIA requests, as well as your apparent inattention to these matters, is unacceptable.”
Traditionally, Supreme Court justices are given broad discretion to choose whether or not to recuse themselves.
Judicial Watch President Tom Fitton said whether or not Kagan should recuse herself “remains an open and complex question,” but he said the failure of the administration to release the emails earlier was eyebrow-raising.
“The emails suggest greater involvement on the part of the Solicitor General’s office than had been previously understood, certainly at the time of [Kagan's] confirmation,” Fitton said. “If this information had come out during her confirmation hearing, there would have been a very different debate.”