Justice Elena Kagan In Health Care Case? GOP Senators Demand More Inquiry Into Recusal Option


WASHINGTON -- Senate Republicans have written a letter to Attorney General Eric Holder asking him to cooperate with their inquiry into whether Justice Elena Kagan should recuse herself from the landmark health care cases coming before the Supreme Court in 2012.

The letter, sent on Friday afternoon by Sens. Mitch McConnell (R-Ky.), Jon Kyl (R-Ariz.), Chuck Grassley (R-Iowa) and Mike Lee (R-Utah), asserts that the Department of Justice "has rejected all Congressional oversight requests for information about [Kagan's] role in the Obama Administration's defense" of the Patient Protection and Affordable Care Act. It argues that Kagan, while serving as solicitor general, had sufficient involvement with and investment in the passage of the law as to trigger two standards for judicial recusal under federal law.

A federal law requires that judges recuse themselves from cases when they have "served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case or controversy." Another provision of the law demands that federal judges disqualify themselves from participating in a case if their "impartiality might reasonably be questioned."

To illustrate their contentions, the senators cite emails that were sent to then-Solicitor General Kagan as well as one email in which she voiced her enthusiasm when Congress looked likely to pass the health care law. Conservative watchdog group Judicial Watch obtained the emails last week through a Freedom of Information Act request.

"I hear they have the votes, Larry!! Simply amazing," Kagan wrote to constitutional law scholar Laurence Tribe, then serving as a legal adviser to the Obama administration. The email's subject line was "fingers and toes crossed today!"

Other emails from then-Deputy Solicitor General Neal Katyal indicate that Kagan wanted the Office of the Solicitor General to be involved in crafting the administration's litigation strategy against the probable challenges to the law. And Katyal added Kagan to email threads discussing how to handle those legal challenges.

Republican calls for Kagan's recusal from the health care cases have been met with Democratic exhortations that Justice Clarence Thomas disqualify himself based on his wife's much-publicized activism against the law.

Since she joined the Court in October 2010, Kagan has recused herself from many cases based on her service as solicitor general, including more than two dozen in her first term. The decision to recuse is left to the individual justice. When the Court releases orders granting or denying review of particular cases, justices who have decided to recuse themselves from those cases are listed as not participating in the decision-making process.

The order granting the health care cases, released Monday, included no such note.

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