Rep. Lamar Smith Trumps Up Investigation Into Justice Kagan's Role In Health Care Reform

July 07, 2011 11:25 am ET — Matt Gertz

Rep. Lamar Smith

In a letter to Attorney General Eric Holder, Judiciary Committee Chairman Lamar Smith (R-TX) yesterday announced that he is investigating Supreme Court Justice Elena Kagan's role in formulating the Obama administration's response to court challenges of the Obama administration's health care reform law, and whether that supposed involvement "should disqualify her from hearing challenges to its constitutionality." Kagan served as the administration's solicitor general at the time the bill was passed.

Smith's effort is consistent with the right's effort since her nomination to force Kagan to recuse herself in health care reform cases; conservatives know that any vote on the Affordable Care Act's constitutionality is likely to be extremely close, and Kagan's presence or absence could determine its fate.

Unfortunately for Smith, the evidence he is citing to call for an investigation is extremely thin. Smith notes that during her Senate confirmation, Kagan said she had not offered her view on health care reform's constitutionality. Smith responds that "documents released by the Department in response to recent Freedom of Information Act requests raise questions about that unequivocal denial."

In fact, those documents — emails written and received by Kagan that were obtained by Judicial Watch and CNS News — actually demonstrate the efforts Kagan made to avoid commenting on health care reform from the initial stages of the administration's effort to defend the law.

The documents show that in January 2010, Associate Attorney General Tom Perrelli began assembling "a group to get thinking about how to defend against inevitable challenges to the health care proposals that are pending," and sought the participation of the Office of the Solicitor General. Rather than join the group herself, Kagan assigned her deputy, Neal Katyal, to do so. In a March 2010 email, Katyal followed up with Perelli, copying Kagan on the email but noting that he had not discussed a response with her. In a May 2010 email, Katyal told a DOJ spokesperson that Kagan "has never been involved" in discussions of health care reform's constitutionality, stating, "I've run it for the Office, and have never discussed the issues with her one bit."

As the conservative CNS News reported:

Did Kagan at any time as solicitor general express an "opinion concerning the merits" of the lawsuits filed against the health care law--an act that would trigger one of the recusal standards in 28 U.S.C. 455? In the text of the emails the Justice Department provided to, Kagan does not do so.

For now at least, this lack of evidence isn't stopping Smith from going on a fishing expedition. As to whether he will also investigate Justice Clarence Thomas' alleged conflicts of interest, we won't hold our breath.