White House: It's a 'Mystery' Why Anyone Would Question That Kagan Should Judge Obamacare

By Fred Lucas | November 28, 2011 | 4:07 PM EST

White House Press Secretary Jay Carney during his daily news briefing at the White House in Washington, Monday, March, 7, 2011. (AP Photo/Pablo Martinez Monsivais)

(CNSNews.com) – Although internal Justice Department e-mails released this year as a result of Freedom of Information Act lawsuits raise questions about whether Justice Elena Kagan should recuse herself from the Obamacare case pending before the Supreme Court, White House Press Secretary Carney indicated today that Kagan had asked and answered all questions relevant to recusal at her confirmation hearings in 2010.

Carney said that “it’s a mystery to me” why people would question whether Kagan should recuse. When pressed about the e-mails, Carney moved to a different topic.

When asked about news reports concerning whether Kagan should recuse from judging the challenge to Obamacare, Carney said on Monday, “These issues were raised, just a year ago, in an expansive confirmation hearing. And those questions were questions were asked and answered both in the hearing itself and in written questions that were responded to in writing. It’s a mystery to me how this can suddenly be an issue a year later and they want to revisit what they just visited not that long ago.”

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CNSNews.com then asked Carney, “Several e-mails have raised the issue on that?”

Carney responded, “Again, as I just said, all this stuff was examined, all of it was--questions were asked. She answered it and she responded in writing to this."

CNSNews.com further said, “But the information that recently came out was not available--”

Carney interrupted, “It sure sounds like a political thing to revisit it a year later.”

CNSNews.com followed up: “But the information in the e-mails was not available during the confirmation.”

Carney did not respond and moved to another topic.

The Department of Justice (DOJ) initially released 65 pages of internal emails relating to Kagan and the health care issue on March 15 in response to lawsuits filed under FOIA by the Media Research Center (the parent organization of CNSNews.com) and Judicial Wathc. This month, DOJ released three additional sets of emails in response to those suits.

In one of the newly released e-mails, Kagan expressed apparent enthusiasm for the passage of the Patient Protection and Affordable Care Act, i.e., Obamacare, in March 2010.

In response to a message at the time of Congress’ vote on the legislation from Harvard Law Prof. Laurence H. Tribe, Kagan, then the solicitor general of the United States, wrote: “I hear they have the votes, Larry!! Simply amazing.”

A federal law, 28 USC 455, says that a justice must recuse in “any proceeding in which his impartiality might reasonably be questioned.” The law also says a justice must recuse anytime he has “expressed an opinion concerning the merits of the particular case in controversy” while he “served in governmental employment.”

During her confirmation process, Republicans on the Senate Judiciary Committee asked Kagan in writing if she had ever been asked or offered her opinion “regarding the underlying legal or constitutional issues related to any proposed health care legislation…or the underlying legal or constitutional issues related to potential litigation resulting from such legislation.” Kagan replied in writing, "No."

Senate Minority Leader Mitch McConnell (R.-Ky.), Senate Minority Whip Jon Kyl (R.-Ariz.) Senate Judiciary Committee Ranking Member Charles Grassley (R.-Iowa), and Sen. Mike Lee (R.-Ky.) recently sent a letter to Attorney General Eric Holder asking him to comply with requests made by Congress seeking information about Kagan’s possible involvement in health care legislation and litigation while she was serving as solicitor general.

“In January 2010--two months before then-General Kagan was even aware she was being considered as a potential nominee to the Supreme Court--your Department began planning to defend this law against legal challenges,” the Senate Republicans’ letter said. “Neil Katyal, Ms. Kagan's principal deputy, stated he would ‘speak with Elena’ about her office participating in a Department working group that would plan the Administration's litigation strategy, exclaiming that he wanted the Administration to ‘crush’ those challenging the [health care law].”

The initial release of e-mails made by the Justice Department in March in response to the FOIAs filed by CNSNews.com and Judicial Watch included a January 2010 exchange in which Kagan assigned her top deputy--who had indicated in another email that day that he wanted to “crush” legal challenges to Obamacare--to handle the expected health-care litigation.

It also included an e-mail exchange in which that top deputy notified Kagan on the Sunday that Obamacare was coming up for a vote in the House and that there was going to be a meeting at the White House the next day to plan for the expected litigation over the legislation. She e-mailed the deputy back asking for his phone number, which he promptly provided.

The Patient Protection and Affordable Care Act was passed by the House on Mar. 21, 2010 and signed into law by President Obama on Mar. 23, 2010.  Kagan was nominated by Obama for the Supreme Court on May 10, 2010.