Right-Wing Media Cheerlead For Yet Another Fishing Expedition Into Kagan's Record

Blog ››› ››› ADAM SHAH

Hope springs eternal. Despite more than a year of fruitless digging, the right-wing media can't let go of their hope that Supreme Court Justice Elena Kagan will be disqualified from hearing cases about the constitutionality of the Affordable Care Act.

Recently, conservative media have been hyping letters from House Judiciary Committee Chairman Lamar Smith (R-TX) as well as 49 other congressional Republicans seeking documents to determine if Kagan was involved with health care litigation during her time as solicitor general (the position she held immediately before being appointed to the Supreme Court).

Conservative media don't bother hiding the reasons for hoping that Kagan must be recused. As Judicial Watch head Tom Fitton wrote on BigGovernment.com, "The U.S. Supreme Court will ultimately settle the issue regarding whether or not Obama's socialist healthcare overhaul will be the law of the land. Everyone knows it. And if Elena Kagan is forced to recuse herself from hearing the case that will be one fewer dependably liberal vote on the Supreme Court for Obamacare."

In addition to Fitton's post on BigGovernment.com, HotAir.com's Ed Morrissey breathlessly hyped the 49 House members' letter, asking, "Did Elena Kagan mislead the Senate Judiciary Committee during her confirmation hearing when answering questions about her level of involvement in ObamaCare?" The Washington Times also hyped the same letter, as did Newsmax. And National Review Online blogger Carrie Severino and Glenn Beck's website TheBlaze.com hyped both the 49 House members' letter and Smith's letter.

But CNS News may take the cake for the most overwrought reaction. CNS reported that Smith had begun an "investigation" into whether Kagan had been involved in health care litigation as solicitor general. It subsequently had to append an "editor's note" to the article explaining that the House Judiciary Committee "requested a correction of the story" because Smith had not launched a "formal investigation" but had merely made a "request for addition information."

CNS's overreaction to Smith's letter to the Justice Department epitomizes the right-wing's campaign to have Kagan recuse herself from health care litigation. The right-wing media keeps demanding further inquiry into the issue of whether Kagan should recuse herself. The additional information shows that there is no reason for Kagan to recuse herself. But the right-wing media claims that all it needs is a little more information, and it will become clear that Kagan did recuse herself.

Below the fold is a brief recap of the right-wing media's recusal campaign so far.

June 29-30, 2010: Senators have two full days to ask Kagan questions at her Supreme Court confirmation hearing and ask whether she was asked "to express an opinion on the merits of the health care bill." Kagan said she was not asked to express such an opinion.

Early July 2010: Six Republican senators ask follow-up written questions of Kagan.

July 13, 2010: The Wall Street Journal publishes an editorial demanding that Republicans ask Kagan whether she was involved in litigation over the health care legislation.

July 13, 2010: Republican senators dutifully send Kagan additional written questions about the litigation over the health care legislation and whether she had expressed an opinion on the legal issues involved in those cases. Kagan replied that she did not have any substantive involvement in them. Kagan also said that by the time cases were filed challenging the constitutionality of the health care legislation, she had "scaled down my participation in more general [Department of Justice] matters" because she had been informed that she was under consideration for a spot on the Supreme Court.

July 20, 2010: Severino says Kagan's statement that she was not involved in the health care reform litigation "utterly implausible."

July 21, 2010: Unlike Severino, The Wall Street Journal says: "We have no reason not to take Ms. Kagan at her word." The Journal nevertheless attacks Kagan for not participating in those cases.

November 9, 2010: Ignoring Kagan's testimony that she was not substantively involved in the health care litigation, right-wing media outlets suggest that Kagan acted illegally by not recusing herself from a case challenging the constitutionality of a provision of the health care reform. (The Supreme Court refused to hear the case.)

March 30-April 11, 2011: Severino hypes documents released in response to Freedom of Information Act litigation showing that Kagan assigned her then-deputy Neal Katyal to work on health care reform litigation issues. However, even CNS News and Severino herself acknowledge that the documents they had uncovered do not show that Kagan must recuse herself from the case.

May 18, 2011: The Daily Caller hypes the same documents Severino had previously highlighted in a bid to have Kagan recuse herself.

June 24, 2011: Forty-nine Republicans send a letter to Smith asking him to investigate Kagan's involvement in health care reform litigation.

July 6, 2011: Smith sends a letter to Attorney General Eric Holder asking for information about Kagan and health care reform litigation.

July 2011: Conservative media breathlessly hype the Republicans' letters.

So, perhaps the Senate Republicans were massively incompetent when they questioned Kagan in 2010. Perhaps Kagan lied in response to written questions when she said she was not substantively involved in health care reform litigation. Perhaps The Wall Street Journal was duped when it decided "to take Ms. Kagan at her word." Perhaps Kagan said she was giving the responsibility in the solicitor general's office for health care reform to her deputy Katyal, but was secretly strategizing behind the scenes in documents that are as-yet undisclosed. Perhaps Kagan and the Obama administration are involved in a massive cover-up. And perhaps Kagan has acted illegally by not recusing herself from health care litigation appeals that have so far come before the Supreme Court.

Or maybe, just maybe, Kagan did not have any substantive discussions about the health care reform bill, its constitutionality, or litigation surrounding that legislation.

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