Herman Cain calls for Kagan recusal in Obamacare court finale

Neil Munro White House Correspondent
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Herman Cain turned up the political heat on the Supreme Court today, saying Justice Elena Kagan should recuse herself from the Obamacare review.

“Members of the highest court in the land should be impartial, strictly follow the Constitution and should not carry water for former employers in the White House,” Cain said in a Nov. 17 press statement.

Cain was responding to the increased focus by conservatives on Kagan following release of an email she sent while working as the administration’s Solicitor General.

“I hear they have the votes, Larry!! Simply amazing,” she wrote to progressive stalwart and Harvard professor Lawrence Tribe.

That email shows that she was a partisan supporter of the president’s health-sector overhaul, and should recuse herself from the court’s debate on its constitutionality, say conservative advocates.

Under current law, Supreme Court judges act as their own judges and juries when they’re accused of having conflicts of interest. The decide for themselves whether they should withdraw from a case, and few do so.

Other conservative groups are adding to the pressure, partly by identifying additional contradictions in Kagan’s statements about her role in the Obamacare debate. (RELATED: Kagan emails lead to calls for inquiry over her involvement in Obamacare)

Kagan’s colleague, Clarence Thomas, is facing pressure form left-of-center activists who say his own decision in the Obamacare case could be swayed by his wife’s politically partisan alliances, which include one with Liberty Central, a right-of-center advocacy group.

Virginia Thomas also conducts videotaped interviews for The Daily Caller.

However, the campaigns against judges are political, said James Sample, a law professor at Hofstra University. Both justices should stay on the case, but also explain their reasons to the public, he told The Daily Caller. Thomas developed his legal and political views before his wife’s political activities, and Kagan’s role in the healthcare debate was minimal, he said.

Conservatives, however, are challenging White House claims that Kagan played no role in the development of the Obamacare law.

In November, Attorney General Holder told a Senate panel that “one of the things that we did while she was solicitor general was to physically — physically, literally move her out of the room whenever a conversation came up about the health care reform legislation. I can remember specific instances in my conference room where when we were going to discuss that topic, we asked that Justice Kagan to — to leave and she did.”

However, that claim seems to contradict Kagan’s testimony during her nomination hearings for the Supreme Court seat, when she said “as Solicitor General, I was never asked to recuse myself from any matter.”

These statements “appear inconsistent,’ said Carrie Severino, chief counsel of the Judicial Crisis Network, which supports a Kagan recusal. “I don’t know whose version of the facts is closet to the truth … there’s a real question about what really happened here.”

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