An article in The Daily Caller today suggested that Supreme Court Justice Elena Kagan was "more involved with President Obama's health-care law than she disclosed previously" and that "newly released documents" would likely "lead to a revival of questions about whether" Kagan should recuse herself from cases related to the health care law. From the article:
Specifically, the documents show that Kagan was involved with crafting the legal defense of the Affordable Care Act in her role as solicitor general, before her appointment to the bench. The Media Research Center and Judicial Watch obtained the documents through a Freedom of Information Act (FOIA) lawsuit that was filed in February 2011.
The Daily Caller has the story wrong here in several ways.
For one thing, these emails, highlighted by a Judicial Watch press release today, are not "newly released." National Review Online blogger Carrie Severino tried last month to use the documents to argue that Kagan should not hear health care cases and CNS News tried to do the same thing in March.
More importantly, the emails don't contradict Kagan's testimony that she was uninvolved in strategizing over the defense of the health care law from legal challenges. This was acknowledged by Carrie Severino, who wrote that "I don't see enough evidence to know whether Justice Kagan must recuse herself from considering the upcoming Obamacare challenges." CNS News' article from March acknowledges the same thing:
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 CNSNews.com, Kagan does not do so.
Judicial Watch president Tom Fitton also acknowledges in his press release on the emails that they do not prove that Kagan should recuse herself from health care cases. Rather, Fitton hopes to uncover some hypothetical other "key document" show that will show that Kagan should recuse herself:
"Any reasonable person would read these documents and come to the same conclusion: Elena Kagan helped coordinate the Obama administration's defense of Obamacare. And as long as the Justice Department continues to withhold key documents, the American people won't know for sure whether her involvement would warrant her recusal from any Obamacare litigation that comes before the High Court," said Judicial Watch President Tom Fitton.