Thanks to Disrupt the Narrative. Rep. Lamar Smith questions AG Eric Holder concerning whether Supreme Court Justice Elena Kagan should recuse herself from the upcoming ObamaCare case. There are really two parts to the conversation here. In the first part, Smith questions why Holder previously told Congress that Kagan was removed from White House conversations about ObamaCare even prior to her becoming an announced candidate for the court. In her role at the time, solicitor general, she should have been very involved in those conversations, but in November Holder told a congressional hearing that the administration removed her from them. She was not yet under consideration for any vacancy on the Supreme Court, since there were none at the time those conversations took place.
In the second part of their discussion, Smith asks Holder why he has failed to produce documents that Smith has specifically asked for. Smith wants to know whether Holder is asserting any sort of executive privilege, or is simply failing to comply. Holder dodges, claiming to have produced all of the documents that Smith requested.
The relevance of all of this? If Kagan was not removed from those ObamaCare strategy sessions, then by law she should recuse herself from the case when SCOTUS takes it up next year. The documents Smith has requested, but Holder has not produced, would shed some light on whether Kagan was actually a part of those discussions or not. Holder won’t produce them, and is relying on his November testimony, which makes no sense. There was no reason to remove the solicitor general from conversations about the administration’s anticipated defense of a law it had pushed to pass.