Washington (CNN) - A federal judge on Friday turned aside a request the Justice Department turn over more documents related to the role Justice Elena Kagan played in appeals over the sweeping health care law, while she was a top Obama administration official.
Two conservative groups –Judicial Watch and Media Research Center– had separately sued, calling "inadequate" the documentation earlier released by the government, following a Freedom of Information Act request.
Other conservative groups have questioned whether Kagan should participate in deciding the constitutionality of the healthcare law, which is expected to be taken up by the justices early next year. It promises to be among the most significant issues taken up by the high court in many years.
Before joining the high court in August 2010, Kagan was the administration's solicitor general, the top government lawyer handling appeals to the Supreme Court. Her nomination by President Obama in May 2010, and the weeks leading up to it, came at a time when Congress had passed –and the president signed– the Patient Protection and Affordable Care Act. The healthcare reform law would significantly change how Americans receive medical services, and has been the subject of six current appeals pending at the high court. Twenty-eight states and dozens of individual plaintiffs have opposed the law.
The Justice Department had turned over some documents under the FOIA request, but redacted or withheld others. The suing groups argued the unreleased material would include details of senior Justice Department meetings Kagan may have attended in the first three months of 2010, where legal strategy over defending the healthcare law could have been discussed.
But U.S. District Court Judge Ellen Segal Huvelle concluded the government need not turn over more paperwork than has already been released.
"Plaintiffs' argument, that the topics within the FOIA request must have been discussed at these meetings and that records related to this must have existed, is simply conjecture and is therefore insufficient to justify a finding that the search was inadequate," ruled Huvelle.
Some of the documents already made public indicate Kagan was deliberately kept out of the loop on most significant department matters beginning in March 2010, when she was informed the president was seriously considering nominating her to sit on the high court. Justice John Paul Stevens –whom Kagan replaced– announced April 9 that year he would retire after 35 years on the bench.
Kagan's chief deputy at the time –Neal Katyal– eventually became the office's point person for defense of the PPACA beginning around March 20, 2010, emails revealed. Katyal later took over Kagan's job on an acting basis, and has since left the solicitor general's office.
Judicial Watch and Media Research Center complained some emails between Kagan and Katyal were released, but not other internal correspondence from Kagan's other deputies. And the conservative groups said the search parameters the department used to complete the FOIA request were not thorough enough. The judge also dismissed those complaints.
"Plaintiffs' FOIA requests did not set forth a discrete list of search terms, and even if [the plaintiffs] had included such a list, there is no bright-line rule requiring agencies to use the search terms proposed in a FOIA request."
Media Research Center operates the CNSNews.com web site.
The Republican-controlled House Judiciary Committee is also looking into Kagan's role in the healthcare appeals.
Congressional Democrats have separately called on Justice Clarence Thomas to recuse himself from the healthcare appeals, citing his lapse in reporting the income of his wife, as required by federal disclosure laws. Virginia Thomas had worked for, and later founded, her own conservative advocacy group. Since Virginia Thomas has openly opposed the healthcare bill, many liberals have said her political activities raise questions about Justice Thomas' own judicial independence and impartiality.
The lawsuits involving Kagan is Media Research Center v. U.S. Department of Justice (cv-10-2013) and Judicial Watch v. U.S. Department of Justice (cv-10-0426).