Last week, 49 GOP members of Congress wrote House Judiciary Chairman Lamar Smith (R-TX) asking him to launch an utterly frivolous investigation into whether Justice Elena Kagan needs to recuse from the Affordable Care Act litigation. As ThinkProgress explained, the case for a Kagan recusal is so utterly lacking in merit that this call for an investigation can only be interpreted as a transparent attempt to distract from the very serious ethical scandals facing Justice Clarence Thomas.
Nevertheless, Smith took them up on their request for an investigation. In a letter to Attorney General Eric Holder, Smith seeks a pile of documents regarding Kagan’s non-existent involvement in the health care litigation:
1. All documents referring to any meetings or conversations (personal or electronic) about potential or actual health care legislation or litigation in which Solicitor General Kagan was involved, mentioned or copied.
2. All documents referencing potential or actual health care legislation or litigation in which Solicitor General Kagan was involved, mentioned or copied.
3. All documents referencing excluding Ms. Kagan from any matters involving health care legislation or litigation while she was Solicitor General.
4. All documents referencing possible recusal by Solicitor General Kagan from any matters relating to health care legislation or litigation if she were confirmed as a Supreme Court Justice.
Most of the documents Smith seeks are already public, and they reveal absolutely no evidence whatsoever suggesting Kagan should recuse. Earlier this year, a conservative news outlet filed a FOIA request seeking documents relating to Kagan’s involvement in the health care litigation. All that they were able to uncover is that Kagan directed other lawyers within her office to work on the Affordable Care Act matter, rather than actually working on the case herself.
Under federal law, judges must recuse themselves from cases where they “participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy.” To participate as counsel, a lawyer must actually provide legal advice or otherwise act as an attorney in a case — telling another lawyer to work on a case does not constitute participation as counsel. So the right’s so-called evidence against Kagan actually proves the opposite of what they claim it proves — it shows that she scrupulously directed Affordable Care Act work away from herself and onto other lawyers in a way that eliminates any recusal issues for her as a justice.
Nevertheless, there is something ingenious about Smith’s document request. His request for documents referencing pending litigation will undoubtedly include some documents that are protected by attorney-client privilege (although the federal courts recognize a narrow exception to governmental attorney-client privilege for criminal cases, that exception does not apply here). When DOJ honors its ethical obligation not to turn over these documents, Smith will almost certainly use their adherence to legal ethics as an excuse to rant about an imagined cover-up.
Ultimately, however, the most likely purpose of Smith’s investigation remains the same. Smith would uncover nothing jeopardizing Kagan’s ability to hear the health care cases even if he were given unlimited access to DOJ’s archives. What he may accomplish, however, is shifting attention from the many, many ethics scandal involving Thomas — including a scandal strikingly similar to the gifting scandal that forced Justice Abe Fortas to resign from the Court in 1969.


In the banquet of spending cuts laid out as part of the debt negotiations, everyone seems to want a piece of Medicaid. Congress and the Administration are hungry for $4 trillion in savings, and while a powerful voting bloc of seniors helps protect Medicare, Medicaid serves people whose voices at the ballot box aren’t typically feared by those in Washington: the majority of Medicaid beneficiaries are women, children, and people with disabilities, many of them people of color, and all of them familiar with how poverty can cut off access to lifesaving medical care. 


The GOP can complain about “burdensome” new Affordable Care Act regulations and standards, but it’s going to be hard to ignore the fact that some of these requirements are actually quite similar to a law signed by former governor and current 2012 presidential contender Jon Huntsman. Consider this admission from the
Yesterday, Louisiana Gov. Bobby Jindal (R) appeared at the First Baptist Church of West Monroe to sign HB 636, a measure that “requires women to be informed of their specific legal rights and options before they undergo an abortion procedure.” Abortion providers will now have to post signs around their facilities stating that “it is illegal to coerce a woman into getting an abortion, that the child’s father must provide child support, that certain agencies can assist them during and after the pregnancy and that adoptive parents can pay some of the medical costs.” The law also creates a Department of Health and Hospitals 

