Another e-mail seemed to indicate enthusiasm for the bill. In response to a message at the time of the vote from Harvard law professor Laurence H. Tribe, then working at the Justice Department, Kagan wrote: “I hear they have the votes, Larry!! Simply amazing.”
Smith, the Judiciary Committee chairman, and Senate Minority Leader Mitch McConnell have pressed Holder for more information, which his department has been reluctant to provide.
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Assistant Attorney General Ronald H. Weich said the lawmakers’ requests on an issue that Kagan testified about at her confirmation hearings were “unseemly.” Submitting to Republicans’ requests for more documents and testimony would be equivalent to a congressional probe on “whether a Supreme Court justice should participate in a case pending before the court,” he said.
Holder is scheduled to testify before Smith’s committee Dec. 8.
Asked whether he was questioning whether Kagan told the truth in her testimony, Smith in a statement did not respond directly. He said the Obama administration has a responsibility to respond to requests from Congress to “clarify any confusion or inconsistencies regarding to what extent Solicitor General Kagan may have been involved in discussions regarding health care legislation and litigation.”
Liberal groups say that Thomas’s conflict comes from the political involvement of his wife, Virginia Lamp Thomas, who has been active in conservative causes since before they were married.
Virginia Thomas has worked for former House Republican leader Richard K. Armey and for the conservative Heritage Foundation. In 2009, she created a group called Liberty Central to advance some of the same political causes as tea party activists, including the belief that Congress and the federal government have strayed beyond the limits of the Constitution. She has since left the organization.
Liberal groups and some Democrats have said her outspoken role creates a dilemma for the justice. They have called for investigations into Thomas’s failure to list his wife’s employers for 13 years, as is required on the justices’ financial disclosure documents. Virginia Thomas’s employment was well known; Thomas said the information was “inadvertently omitted.”
Before he resigned from Congress, then-Rep. Anthony Weiner sent Thomas a letter signed by 71 other Democrats urging Thomas to recuse himself, saying there was a “strong conflict between the Thomas household’s financial gain through your spouse’s activities and your role as Associate Justice of the United States Supreme Court.”
Last week, Rep. Louise M. Slaughter (D-N.Y.) took up the cause, asking Chief Justice John G. Roberts Jr. to have the Judicial Conference investigate Thomas’s omissions.
Thomas has received some high-profile support in the argument that his wife’s political activities have nothing to do with his ability to hear the case — from the court’s liberal wing.
Former justice John Paul Stevens said in response to a question at Princeton University that “I wouldn’t think there’s any possibility that any of the activities of Mrs. Thomas have had any impact on the analysis of Judge Thomas.” And Justice Stephen G. Breyer called it a “false issue.”
The calls for recusal have prompted a lively debate among those who study judicial ethics. John Steele, a California lawyer who teaches legal ethics and helps run a blog called Legal Ethics Forum, said the general consensus among those without a partisan interest is that “we don’t have a case for either one of them recusing.”
“At the end of the day, we have to trust them,” he said, meaning that judges must put aside personal interests to reach legal decisions.
None of the calls for recusals have come from the parties involved in the litigation. Florida Attorney General Pam Bondi (R), whose state spearheaded the challenge of the health-care act, is careful when asked about the issue.
“Those questions are up to the individual justices themselves, and all indications are that all nine justices will participate in this case,” she said in a statement.
Researcher Lucy Shackelford contributed to this report.
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