Judicial Watch Asks Supreme Court Justice Elena Kagan to Directly Address Obamacare Recusal Controversy

(Washington, DC) — Judicial Watch, the nation’s largest government watchdog group, today sent a letter asking Supreme Court Justice Elena Kagan to address the facts surrounding her tenure as Solicitor General and the enactment and subsequent legal defense of the PPACA (Patient Protection and Affordable Care Act), as well as to provide an articulation of her reasoning behind any decision regarding recusal.

Emails previously obtained by Judicial Watch suggest that, during Justice Kagan’s tenure as Solicitor General, the Office of the Solicitor General had been more involved in the legal defense of the PPACA than had previously been disclosed.  Late last year, another set of records were produced that included an email showing what appeared to be then-Solicitor General Kagan’s excitement and support for the passage of the PPACA.

In the letter, Mr. Fitton notes, “The failure of the Justice department to produce requested records in a timely manner, the dribbling out of requested records over time, the redaction and withholding of other records, and the refusal to respond to requests for records and information from several members of Congress have contributed to the substantial impression that additional details about your tenure as Solicitor General and the enactment and subsequent legal defense of the PPACA are being withheld from the American people.  However, [as] the Court ultimately rules on the various legal challenges to the PPACA, it would be extraordinarily unfortunate if the Court’s decision were overshadowed by controversy over your participation in the matter.  It would leave a cloud hanging over the Court’s decision and could undermine public confidence in the impartiality and integrity of the Court as an institution.”

The letter states, “Judicial Watch is not calling on you to recuse yourself from the PPACA litigation at this time, just as Judicial Watch did not call on Justice Scalia to recuse himself from the litigation involving the National Energy Policy Development Group (‘NEPDG’) – to which Judicial Watch was a party – in 2004.  When a controversy arose during the course of the NEPDG litigation over whether Justice Scalia should recuse himself from that matter, Justice Scalia issued an opinion stating:  ‘The decision whether a judge’s impartiality can ‘reasonably be questioned’ is to be made in light of the facts as they existed, and not as they were surmised or reported.”  Justice Scalia then provided a comprehensive recitation of the facts ‘as they existed,’ not as they were ‘surmised or reported,’ and an articulation of the reasoning behind his decision not to recuse himself.”

Mr. Fitton further notes, “During your confirmation process, you wrote that you would ‘consider carefully the recusal practices of current and past Justices’ as well as consult with your colleagues if questions about recusal in particular cases arose.   Judicial Watch believes that it would be of substantial benefit to the Court’s consideration of the legal challenges to the PPACA if, like Justice Scalia in the NEPDG matter, you were to address the facts surrounding your tenure as Solicitor General and the enactment and subsequent legal defense of the PPACA as they ‘existed,’ not as they are being ‘surmised or reported,’ as well as provide an articulation of your reasoning behind any decision regarding recusal.”

Justice Kagan has said that she was not “substantially” involved in the DOJ discussions regarding Obamacare’s constitutional or litigation issues.  The White House, despite repeated inquiries, has refused to confirm to Judicial Watch that Justice Kagan was “walled off” from Obamacare defense discussions while at the Department of Justice (DOJ).

The Judicial Watch letter also references is the lack of cooperation by the DOJ in responding to Freedom of Information Act (FOIA) requests previously submitted by Judicial Watch for records pertaining to Justice Kagan and the PPACA.

On February 21, 2012, Judicial Watch filed another FOIA lawsuit against the DOJ, seeking access to calendars, schedules, and phone logs for Justice Kagan and her deputies inside the Solicitor General’s office.

“We hope that Justice Kagan will give serious consideration to addressing this recusal controversy, so as to provide greater transparency and increase public confidence in the impartiality and integrity of the Supreme Court,” stated Judicial Watch President Tom Fitton.