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 email@example.com.