Senate GOP leaders say Kagan may have to recuse herself

C.J. Ciaramella Contributor
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Senate GOP leaders said on Friday that Supreme Court Justice Elena Kagan’s previous work as solicitor general may be grounds for her to recuse herself from the court’s upcoming review of President Obama’s health care law.

In a letter to Attorney General Eric Holder released Friday, four top Republican senators, led by Minority Leader Mitch McConnell, demanded more information from the Justice Department regarding Kagan’s role in crafting the Obama administration’s legal defense against challenges to its health care reform. (RELATED: Cain calls for Kagan recusal)

Kagan was solicitor general when Obama’s health care reform law was passed. During her confirmation hearings to be appointed to the Supreme Court, she said her involvement in matters related to the law was not “substantial.”

However, the GOP senators said in their letter that the Justice Department ignored requests for documents from congressional oversight members that would have shed more light on Kagan’s role. They pointed to recently disclosed emails in which Kagan was looped into several discussions about meetings to formulate legal defenses against challenges to the law.

“It appears that former Solicitor General Kagan’s participation in the Obama Administration’s defense of the PPACA may satisfy both requirements for recusal,” said the letter’s authors — Senate Minority Whip Jon Kyl of Arizona, Sen. Chuck Grassley of Iowa, the ranking Republican on the Judiciary Committee, and Sen. Mike Lee of Utah.

According to 28 USC 455, Supreme Court justices must recuse themselves from “any proceeding in which his impartiality might reasonably be questioned.” The law also says justices must recuse themselves if they have “expressed an opinion concerning the merits of the particular case in controversy” while serving in government employment.

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