WASHINGTON — Michele Bachmann is one of 49 House Republicans asking the House Judiciary Committee to investigate Supreme Court Justice Elena Kagan’s role in crafting a legal defense of President Obama’s health care law, warning such work could bar her from participating in deciding legal challenges to the law when they reaches the court.
In a letter to the ranking committee members, the Republicans write, “recently released Department of Justice documents indicate that Justice Kagan actively participated with her Obama Administration colleagues in formulating a defense” of the law. Kagan served as solicitor general, the administration’s top lawyer, prior to her appointment on the court. She has recused herself from hearing many cases because of her earlier participation in them.
The letter cites federal law outlining when judges are to recuse themselves from cases, including those where they “served in government employment and in such capacity participated as counsel, adviser or material witness concerning the proceedings or expressed an opinion concerning the merits of the particular case in controversy.”
The letter contends Department of Justice emails show Kagan was so involved in defending the law that it would warrant her disqualification from hearing and deciding any case related to it.
There are a handful of legal challenges to the health care law currently working through the judicial system and the Supreme Court is expected to ultimately rule on the law’s constitutionality. The court tends to lean conservative, with one swing vote, Justice Anthony Kennedy, who generally side with the court’s conservatives on economic matters.
Such a thin margin has lead both parties to call for justices’ recusals in a health care law case, hoping to swing the balance of the court to either defend or defeat the landmark law.
For example, many Democrats, including Minnesota’s Keith Ellison, have insisted conservative Justice Clarence Thomas recuse himself from health care law cases because of his wife’s paid job lobbying against it.
Devin Henry can be reached at dhenry@minnpost.com.
Comments (5)
Clarence Thomas shouldn't have to recuse himself because of the activities of his wife. She is a citizen in her own right and he should not be held liable for anything she says or does.
Kagan, on the other hand, is being asked to recuse herself because of her activities, not her partner's.
Justice Thomas, however, accepting, as he does, gifts (say a $15,000 bust of Lincoln) and social amenities (say, from a right-wing political supporter in Arizona)might want to be a bit more circumspect about conflict-of-interest questions. Right-wing commentators know that they would never in a million years allow, say, Justice Hillary Clinton, to accept gifts or social amenities from left-wing/moderate supporters who may likely have issues before he Court. Republican commentary about whose hands are soiled and in what way should be takem with a large grain of salt. Grifting for gifts and bennies--keeping a less-than-acute watchout for COF insuues--are more a human dynamic/dilemma than they are a partisan one. I probably agree with Mr. Tester about Mrs. Thomas' activites. Mr. Justice Thomas' activites however are dangerous and indefensible regardless of partisan background.
Perhaps Bachmann will get her investigation--right after congress gets through investigating Democrats for un-American proclivities.
God, she's an embarrassment.
Kagan has already recused herself from some cases where she played an active part through her previous post in the administration. The sad thing about this story is that the republicans are stirring the pot, creating a sense of scandal where none exists. If and when these cases reach the Supreme Court, and when Justice Kagan announced her decision on whether she can participate or not, that is when this issue will be ripe for discussion.
On the other hand, there are/have been questions whether Justice Thomas has/has had financial conflicts of interest due to the employment status of his wife. A husband and wife are a legal entity so when she receives compensation from an interested party, it seems that he would be too. Where that might not be a big deal in the Congress with so many members sharing decision-making, the conflict rises to a higher level with only 9 justices.
Spot on, Bill @#4.