- The Washington Times - Friday, November 18, 2011

Top Republican senators said late Friday the Justice Department has been stonewalling their request for more information on Supreme Court Justice Elena Kagan, and said her previous work as solicitor general “may satisfy both requirements for recusal” from the upcoming health-care case.

The senators, led by Minority Leader Mitch McConnell, are demanding Attorney General Eric H. Holder Jr. comply with requests for more documents about Justice Kagan’s role in planning the administration’s defense, and said unless he provides the information it could undermine confidence in the court’s eventual ruling on the case.

“President Obama chose to nominate a member of his administration to the Supreme Court knowing it was likely that, if confirmed, she would be in a position to rule on his signature domestic policy achievement,” said the four senators, who also included Senate Minority Whip Jon Kyl of Arizona; Sen. Chuck Grassley of Iowa, the ranking Republican on the Judiciary Committee; and Sen. Mike Lee of Utah.

The Supreme Court announced early this week that it would hear a challenge to the health-care law, which Mr. Obama signed last year. Questions have floated for months over whether Justice Kagan could rule impartially in the case. She was solicitor general at the time the law passed, and acknowledged during her confirmation hearing that she attended at least one meeting where litigation was discussed.

Justice Kagan said at the time her role was not “substantial,” but the senators said that’s irrelevant to the law. They said the law requires recusal if a government official participated in any matter that is the subject of litigation.

The senators also pointed to emails that suggest Justice Kagan was kept in the loop on discussions over how to defend the law. The letter was released to the press late Friday evening. A message left seeking comment from the Justice Department wasn’t immediately returned.

During her confirmation hearing Justice Kagan told senators while she attended a meeting, she had no role in crafting a response to the lawsuits. She declined to commit at the time to recusing herself.
> In addition to Justice Kagan, Justice Clarence Thomas ha come under fire from liberal groups who say he should recuse himself from the case because of his wife’s financial ties to groups that oppose the health care law.

“Given these facts, there is a strong conflict between the Thomas household’s financial gain through your spouse’s activities and your role as an associate justice of the United States Supreme Court,” dozens of Democrats said in a letter to Justice Thomas earlier this year. “We urge you to recuse yourself from this case.

If the U.S. Supreme Court’s decision is to be viewed as legitimate by the American people, this is the only correct path.”

Each justice participated in the court’s decision Monday to hear the health care case, though that doesn’t rule out a future recusal.

Still, law experts said they doubted either would withdraw from the case, and said from the evidence so far, there is no reason why either should.

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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