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Court’s Recusal Issue Still Unsettled

Scott J. Ferrell/CQ Roll Call File Photo
Conservatives have called for Supreme Court Justice Elena Kagan to recuse herself from the case considering the constitutionality of the health care reform law.

The Supreme Court might have blocked a conservative activist from participating in oral arguments against the health care law, but stakeholders maintain it's not a setback in their larger push for Justice Elena Kagan to recuse herself during deliberations this spring.

The high court rejected Freedom Watch founder Larry Klayman's request to participate in oral arguments, although his amicus brief maintaining that Kagan should not participate in the case still stands.

Klayman, a conservative dynamo who also founded Judicial Watch, said Monday's decision "is not a setback." Ed Whelan, another conservative legal scholar, called the announcement "insignificant" to the broader dispute over whether Kagan should recuse herself.

Conservatives have pushed for Kagan to step aside when the Supreme Court considers the constitutionality of the health care reform law this spring. The newest justice on the court served as President Barack Obama's solicitor general while the law was being crafted in Congress in 2009 and 2010, and conservative legal observers maintain Kagan's role in the executive branch during that time prevents her from considering the law fairly in court.

Supreme Court justices decide on their own whether to recuse themselves in cases when their impartiality might be in question, and advocates of all political stripes gripe that the lack of protocol in deciding when to step back is a problem. Scrutiny over the issue has only grown in the months since it was announced the Supreme Court would take up the health care law, a highly political issue that will come before the court just as the 2012 campaign season is in full swing.

Klayman said Monday's decision suggests the high court is avoiding the thorny issue of conflicts of interest and whether justices should step aside in pending cases in which they might have a vested interest.

"Apparently, the Supreme Court thinks it will be embarrassed if it, in effect, allows the American people to speak and wants to quietly sweep the issue of its own ethics and respect for the law under the table," Klayman said in a release.

But Klayman vowed to press on, noting in an interview that he spoke with House Judiciary Committee staff about holding a hearing on the matter and calling for Chief Justice John Roberts and Kagan to testify. Roberts has maintained that justices should not recuse themselves from hearing cases unless absolutely necessary, and in a year-end report in December, he said, "I have complete confidence in the capability of my colleagues to determine when recusal is warranted."

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