After Hatch embarrassed himself, health reform’s opponents shifted tactics — filing a Freedom of Information Act request seeking evidence that Kagan did indeed work as an attorney defending the ACA. Unfortunately for them, this also proved to be a dry well. Even National Review writer Carrie Severino, a former law clerk to Justice Thomas, was forced to conclude that the documents contain no evidence requiring Justice Kagan’s recusal.
Round three was particularly clever. House Judiciary Chairman Lamar Smith (R-TX) sent a letter to DOJ demanding that they turn over a pile of documents that included obviously privileged internal communications about how the Justice Department’s lawyers planned to defend health reform. When DOJ did not leap to comply with this ridiculous request, the law’s opponents’ feigned outrage.
Now we’ve reached round four, with Sen. Jeff Sessions (R-AL) playing the role of supreme inquisitor:
Administration emails recently obtained by the conservative CNSNews.com through a Freedom of Information Act request show Kagan telling a former colleague “I hear they have the votes, Larry!! Simply amazing,” regarding the reform bill. The emails have rekindled calls for Kagan to recuse herself from ruling on the healthcare reform law next year because of a provision of the U.S. code that calls on justices to disqualify themselves when they have “expressed an opinion concerning the merits of the particular case in controversy” while in government service. . . .
“I am deeply disturbed by these developments and believe that the Justice Department should have provided these documents to the Senate Judiciary Committee during Justice Kagan’s confirmation hearing,” Sessions wrote to Holder in a series of questions for the record. “The Department’s failure to provide this information to Congress and to comply with FOIA requests, as well as your apparent inattention to these matters, is unacceptable.”
Once again, health reform’s opponents are so desperate to stack the Court against the Affordable Care Act that they have forgotten to pay attention to what the law actually requires Kagan to do. The law does indeed require a judge to recuse “[w]here he has served in governmental employment and in such capacity participated . . . expressed an opinion concerning the merits of the particular case in controversy,” but Kagan’s statement that the vote on the Affordable Care Act is “simply amazing” is in no way a statement “concerning the merits” of a particular lawsuit. Kagan did not say “this is amazing and the law is constitutional,” she just said that a particular whip count is “amazing.” Nothing in the law requires her to recuse.