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Washington Times - Fleming on Kagan Recusal


Location: Washington, DC

Congressman John Fleming, M.D., (LA-4) wrote an editorial, published today in the Washington Times, on the unanswered questions surrounding Justice Elena Kagan's role in planning a legal defense for Obamacare while she was the administration's Solicitor General. Excerpts are included below. The editorial, in its entirety, can be read here.

"Before she joined the high court, Justice Elena Kagan was President Obama's solicitor general. When the federal government is involved in litigation before the Supreme Court, the solicitor general's office is responsible for the government's side of the case. That means the solicitor general is essentially the president's top advocate before the Supreme Court.

"In January 2010 the Justice Department began planning its legal defense for Obamacare. The law had not yet passed, but a team was already being assembled to formulate the administration's legal defense strategy. Then-Solicitor General Kagan approved of her office participating in that planning and she appointed her top political deputy, Neal Katyal, to be the point person for her office. It was his job to bring then-Solicitor General Kagan in as needed.

"If the solicitor general was involved in planning the Obamacare defense, which would be expected, then the Justice Department knows the degree of her involvement. When Attorney General Eric H. Holder Jr. testifies before the House Judiciary Committee on Thursday, he must finally answer some important questions about Justice Kagan and her role in planning the defense for a law that she will rule on next year, unless she does the right thing and disqualifies herself from the Obamacare case.

"The Justice Department's planning for the Obamacare defense began three months before Justice John Paul Stevens announced his retirement from the high court. Even if Elena Kagan's name was on a presidential short list of possible Supreme Court nominees in January 2010, there was no vacancy yet, and it would be illogical for the solicitor general to not be involved as the Justice Department was planning for such a monumental case."

"Mr. Holder promised to "make openness the default, not the exception' when responding to FOIA requests. Yet, in this case, his department has told a congressional committee, "We respectfully decline to produce the documents and access to individuals requested.' Very soon, we will witness a Supreme Court hearing and ruling on a case with far-reaching implications for our nation's future, and the American people have a right to know if the states bringing the challenge to Obamacare will receive a fair hearing. It is time for the attorney general to be transparent about this matter.

Dr. John Fleming is Chairman of the Natural Resources Subcommittee on Fisheries, Wildlife, Oceans and Insular Affairs and is a member of the House Armed Services Committee. He is a physician and small business owner and represents the 4th Congressional District of Louisiana.

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