New Documents Show Justice Elena Kagan’s Comments on Obamacare Legislation While Serving as Solicitor General

Judicial Watch, the public interest group that investigates and prosecutes government corruption, announced today that it has obtained three new documents that provide additional information about Supreme Court Justice Elena Kagan and the Affordable Care Act (also known as Obamacare) while she served as solicitor general. Justice Kagan has said she was not actively involved in the Department of Justice (DOJ) discussions regarding Obamacare. Moreover, the Supreme Court justice did not recuse herself from the High Court decision in April 2011 not to “fast-track” for Supreme Court review Virginia’s lawsuit challenging Obamacare.

The following are highlights from the documents obtained by Judicial Watch pursuant to a Freedom of Information Act (FOIA) lawsuit filed on February 24, 2011. (Judicial Watch’s lawsuit has been consolidated with a similar FOIA lawsuit that had been first filed against the DOJ by the Media Research Center.):

• An October 13, 2009, exchange between Kagan and former Deputy Solicitor General Neal Katyal. Katyal informs Kagan, “We just got Snowe on health care,” referring to Senator Olympia Snowe (R-ME). (The bulk of the email exchange reflects a discussion about Kagan, and also provides instructions regarding a hiring decision within the agency, although the nature of the position is unclear. When Katyal asks if Kagan wants to handle the hire via email or in person meeting, Kagan responds, “In person. I’ll call a meeting when I return.”)
• A March 21, 2010, email from Kagan to then-Senior Counselor for Access to Justice Laurence Tribe: “I hear they have the votes Larry!! Simply amazing…” Tribe responds, “So healthcare is basically done! Remarkable.”
• A March 16, 2010, email from Kagan to David Barron, then-acting head of the Justice Department’s Office of Legal Counsel, asked if he had seen an article by Michael McConnell published in the Wall Street Journal that discussed a strategy by Democrats to “‘deem’ ObamaCare into Law without voting.” “Did you seee [sic] Michael McConnell’s piece in the wsj?” Kagan writes in an email with the subject line “Health care q.” “YES, HE IS GETTING THIS GOING,” replied Barron.

“These new emails are bound to raise additional questions about whether Justice Kagan ought to participate in High Court deliberations on Obamacare. Certainly, if these documents were known at the time of her confirmation, there may have been quite a different Senate debate. The Obama Justice Department dumped these documents just before a holiday weekend, hoping they would go unnoticed. This slow-walking of documents out of the Obama Justice Department is scandalous and makes one wonder what other information they are sitting on,” said Judicial Watch President Tom Fitton.

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