Citing Evidence They Call 'Contradictory' to Kagan's Confirmation Testimony, 49 Lawmakers Call for Judiciary Committee Investigation
Friday, July 01, 2011
By Terence P. Jeffrey

Elena Kagan

President Obama introduces Solicitor General Elena Kagan as his nominee for the U.S. Supreme Court in the East Room of the White House on Monday, May 10, 2010. (AP Photo/Susan Walsh)

( - Forty-nine members of the U.S. House of Representatives--including the chairman of the House Oversight Committee, the chairman of the Republican Policy Committee and two presidential candidates--are pointing to evidence they say is "contradictory" to Supreme Court Justice Elena Kagan's confirmation testimony and calling for the House Judiciary Committee to investigate the matter.

The lawmakers say they believe that evidence already made public shows that Kagan must recuse herself from any court cases involving the health care bill signed into law by President Barack Obama while she was serving as Obama's solicitor general.

"We respectfully call upon the House Judiciary Committee to promptly investigate the extent to which U.S. Supreme Court Justice Elena Kagan was involved in preparing a legal defense of the Patient Protection and Affordable Care Act (PPACA) during her tenure as Solicitor General," the 49 lawmakers wrote in a letter to Rep. Lamar Smith (R.-Texas), the chairman of the Judiciary Committee, and Rep. John Conyers (D.-Mich.), the ranking member of the committee.

"Contradictory to her 2010 confirmation testimony before the Senate Judiciary Committee, recently released Department of Justice (DOJ) documents indicate that Justice Kagan actively participated with her Obama Administration colleagues in formulating a defense of PPACA," the letter said.

The letter pointed to documents released by the Justice Department as the result of a Freedom of Information Act request that was filed by on May 25, 2010 and that is now the subject of a federal court case pitting the Media Research's parent organization--and the U.S. Justice Department, which is asking a federal judge to block any further release of documents sought under the FOIA request.

Rep. John Fleming (R.-La.) was the lead signer of the letter. Other signers include House Oversight and Government Reform Chairman Darrell Issa (R.-Calif.), Republican Policy Committee Chairman Tom Price (R.-Ga.), and Representatives Michele Bachmann (R.-Minn.) and Ron Paul (R.-Texas), who are presidential candidates. Eleven of the members who signed the letter are physicians, including Fleming, Price and Paul.

(The Justice Department's initial 68-page March 15, 2011 response to's FOIA request--which includes email communications between Kagan and her deputies in the Office of Solicitor General--can be viewed here.)

"Regrettably the Justice Department has been uncooperative to date with repeated FOIA requests that seek the full body of relevant emails from the Office of the Solicitor General that would reveal the scope of Kagan's involvement in PPACA defense activities," the 49 congressmen said in their letter to Chairman Smith and Ranking Member Conyers.

The documents relating to Kagan and the health-care issue that have been released thus far by the Justice Department are the result of a Freedom of Information Act request filed by in May 25, 2010--before Kagan's confirmation hearings. The FOIA request sought three categories of records: 1) those that reflected communications Kagan had had or meetings she had attended personally or electronically in which the administration's health care reform plan was a topic, 2) those that reflected communications she had had or meetings she had attended personally or electroncially in which legal challenges to the health-care reform bill President Obama signed was a topic, and 3) those that reflected communications she had had or meetings she had attended personally or electronically in which there was discussion of whether Kagan ought to recuse herself from any matter as solicitor general because it might later come before her were she confirmed to a federal court.

The Justice Department stalled on producing documents relevant to the request and the Media Research Center sued in federal court to make them comply with the Freedom of Information Act.

In two initial contradictory response letters to the FOIA request in June 2010--just before Kagan's confirmation hearings in the Senate Judiciary Committee--the Justice Department at first said it was exempt under the FOIA law from responding to request, but then it withdrew that letter and said in a second letter that it would prepare a response once clarified two points. Both letters came from Valerie Hall, the executive officer in Kagan's Office of Solicitor General.

The first clarification Hall said the solicitor general's office wanted was what was meant in the FOIA request by the term “the administration’s health-care reform plan.