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Calls Increasing for Justice Kagan to Recuse Herself from ObamaCare Case

Top Republican Senators are now saying that Supreme Court Justice Elena Kagan's previous work as solicitor general may satisfy all the requirements needed for a justice to be recused from a case.

The Washington Times is reporting that calls for Justice Kagan to recuse herself from the upcoming ObamaCare review by the U.S. Supreme Court are growing louder and more insistent. Led by Senate Minority Leader Mitch McConnell (R-KY), an increasing number of legislators are demanding that Attorney General Eric H. Holder Jr. comply with requests for more documents about the role Kagan played in planning the administration's defense of the unpopular reform. Unless he does so, they believe it could undermine confidence in the Court's eventual ruling on the case.

 “President Obama chose to nominate a member of his administration to the Supreme Court knowing it was likely that, if confirmed, she would be in a position to rule on his signature domestic policy achievement,” said senators Jon Kyl (R-AZ), Chuck Grassley (R-IA), Mike Lee (R-UT) and McConnell in a statement.

Kagan has asserted that her role in drafting a defense of ObamaCare was not "substantial,” but the senators say the law requires recusal if a government official participated in any matter that is the subject of litigation. According to e-mails already discovered, Kagan was kept in the loop on discussions over how to defend the law.

During her confirmation hearings, Kagan told senators that while she attended the meetings, she had no role in creating a response to the lawsuits that ensued when the bill was passed into law in March, 2011. At the time of her confirmation hearings, when the issue of recusal was raised, Kagan declined to comment about it.

In addition to Justice Kagan, Justice Clarence Thomas has also come under fire from liberal groups who say he should recuse himself from the case because of his wife’s financial ties to groups that oppose the health care law.

“Given these facts, there is a strong conflict between the Thomas household’s financial gain through your spouse’s activities and your role as an associate justice of the United States Supreme Court,” dozens of Democrats said in a letter to Justice Thomas earlier this year.

“We urge you to recuse yourself from this case. If the U.S. Supreme Court’s decision is to be viewed as legitimate by the American people, this is the only correct path.”

According to the Times, most law experts say they doubt whether Kagan or Thomas will withdraw from the case as there is not enough reason yet for either of them to do so.

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