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Justice Kagan Must Recuse Herself

The opinions expressed by columnists are their own and do not necessarily represent the views of

The American Left has been railing about Justice Clarence Thomas. His wife, Ginni Thomas, is a Tea Party supporter, and the CEO of - a 501(c)(4) that focuses on the value of liberty with "insistence on limited government."

The Left believes that Justice Thomas would be unable to render an impartial decision on Obamacare, the Constitutionality of which will be determined by the Supreme Court when they hear oral arguments in March of 2012. The Left argues that because of Ginni Thomas's work that Justice Thomas will be skewed in his decision making, and are demanding that he recuse himself.

Yet, they remain woefully silent on Justice Elena Kagan. Kagan was the Solicitor General under President Obama before being nominated to the high court. As Solicitor General, Kagan's job was to argue cases in front of the Supreme Court on behalf of the administration. If she was still there, she would be the one arguing for Obamacare in front of the court.

As is reporting, Kagan "cheered" when the House (under then Speaker Nancy Pelosi) ramrodded the bill through. In an email to Laurence Tribe, a famed lawyer who was working in the Justice Department at the time, Kagan reportedly stated:

I hear they have the votes, Larry!! Simply amazing

The full email exchange can be found here. Kagan's need to recuse herself is, first and foremost, based in the rules of the Court itself:

According to 28 USC 455, a Supreme Court justice must recuse from “any proceeding in which his impartiality might reasonably be questioned.” The law also says a justice must recuse anytime he has “expressed an opinion concerning the merits of the particular case in controversy” while he “served in governmental employment.”

For Kagan to say that she has had no opinion on Obamacare while serving in a official capacity to craft and/or defend the legislation is simply a lie. Tribe, for his part, is doing a wonderful soft shoe in defending Kagan, stating to that 28 USC 455 should not apply to Kagan. Tribe further claims that he and Kagan never spoke about Obamacare when she was the Solicitor General.

But forget the code, let's talk morality. The argument against Justice Thomas is specious at best. The assumption that Justice Thomas can not render a competent decision, simply because his wife holds a certain job, is insulting, bordering on sickening. Those who claim this argument must then reconcile the cases of Representatives and Senators whose spouses (or children) are lobbyists in DC.

The same can not be said of Justice Kagan. These latest emails show that her interest in Obamacare was indeed personal, and professional. As The American Thinker pointed out in early November, a Congressional request from 49 House members for documents involving then-Solicitor General Kagan's involvement with Obamacare was denied by the Justice Department. Without any legal merit the Justice Department decided not to comply, preventing further examination of Kagan's involvement with Obamacare.

What does it say if Kagan does not recuse herself? If politics is placed above the law - and its rightful inspection and scrutiny - then of what value is the law? If ideology trumps morality, then of what value is the court itself, or the law, or the Republic?

What value indeed.

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