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Lawmaker continues to press White House on Kagan’s role in health care law’s defense

Rep. Lamar Smith is amplifying his call to the White House to disclose more information about Supreme Court Justice Elena Kagan’s involvement in crafting the defense of the federal health care overhaul when she was solicitor general now that the Court is set to decide the law’s constitutionality.

“Justice Elena Kagan may have played a role in the development and defense of the president’s health-care law during her tenure as U.S. solicitor general,” the Texas Republican wrote in an op-ed in the Washington Post. “Despite claims from Obama administration officials that Kagan was not involved in the health-care discussions, e-mails released last month indicate that there may be more to the story.”

Smith is one of several Republican lawmakers and conservative interest groups who have raised concerns about Kagan’s participation in the case. The Justice Department released emails from Kagan’s tenure as solicitor general which show, according to the Obama administration, that measures were taken to shield Kagan from involvement in the defense of the law, which was challenged in federal courts as Kagan was rumored to be a candidate to replace Justice John Paul Stevens on the Court.

But Smith said some of the emails are inconsistent with that position, and the White House should provide more information.

“The NFL wouldn’t allow a team to officiate its own game,” Smith worte. “If, as solicitor general, Kagan did advise administration officials on the constitutionality of the president’s health-care law, she should not officiate when the matter comes before the Supreme Court.”

Smith noted that both Kagan and Justice Clarence Thomas – whose wife is affiliated with groups opposing the law – are facing increasing calls by some interest groups to step aside in the case. But according to Smith, the questions raised about Kagan are much more serious.

“[C]oncerns about the job or personal views of a justice’s spouse are not the same as concerns that a justice may have been involved in a matter before it reached the high court,” Smith wrote.


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