While Republicans argue that Kagan's previous role as solicitor general under President Obama is reason for her disqualification from the case, Democrats assert that Thomas should not be involved in the case due to his wife's connection to Tea Party groups that have fought for the repeal of the health care law.
GOP presidential candidate Herman Cain released a statement requesting that Kagan “recuse herself immediately from the Obamacare case.” The statement went on to assert that justices “of the highest court in the land should be impartial, strictly follow the Constitution and should not carry water for former employees in the White House.”
Further adding fuel to the debate is an email to Justice Laurence Tribe in which Kagan applauded the passage of the Obama administration's health reform law. “I hear they have the votes, Larry!! Simply amazing,” read the email. However, Kagan maintains that in her previous position, she was not involved in any of the Affordable Care Act deliberations.
Republican lawmakers have requested an investigation to determine exactly what role Kagan did play in formulating the legal defense to challenges to the health care law, while holding the position of solicitor general.
However, if Kagan's ability to participate in the case is to be questioned, certainly Thomas' participation must also be considered. Earlier this year, more than 70 Democrats wrote to Thomas and asked him to recuse himself due to a conflict of interest stemming from his wife's work at the conservative non-profit political advocacy group, Liberty Central. “Your spouse is advertising herself as a lobbyist who has ‘experience and connections' and appeals to clients who want a particular decision—they want to overturn health care reform. According to Mother Jones, a liberal magazine, Thomas' wife has earned about $150,000 through her involvement with Liberty Central.
Ultimately, the decision rests with the individual justices and at this point it appears as though neither justice will be sitting this one out. When a justice intends to recuse him or herself from a particular case, it is typically indicated in the cert order and neither Kagan nor Thomas made any such indication last week.
The high court is expected to reach a decision by June.
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