- The Washington Times - Thursday, December 8, 2011

The top Republican on the House Judiciary Committee said Thursday the Obama administration is fueling speculation about Justice 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.

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 President 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 said.

Conservative groups have called for Justice Kagan to recuse herself from ruling on the health care case, 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 denied his request, but never cited any legal privilege to withhold information.

Mr. Holder told the committee they 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.

Justice Kagan was confirmed with bipartisan support to the Supreme Court, went through the usual thorough confirmation process,” Mr. Carney said.

Mr. Carney also pointed to an Op-Ed column by Michael B. Mukasey, former attorney general under Republican President George W. Bush, who wrote this week that for Justice Kagan to recuse herself, she “would have had to participate in her official capacity as counsel or adviser in the case at any stage, or expressed an opinion in her official capacity about the merits” of the case.

“Asked during her confirmation proceedings whether she had done so, she said no,” Mr. Mukasey wrote. “Absent evidence to the contrary, there is no reason not to credit that denial.”

Said Mr. Carney, “We agree with him.”