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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 conservative Klayman is not the only one who has taken issue with that stance. Congressional Democrats have maintained for months that Justice Clarence Thomas should step aside from participating in deliberations of the health care reform law because of his wife's tenure at the Heritage Foundation.

The conservative organization was an ardent opponent of the measure while it was working its way through Congress, and Democrats say Thomas will therefore not be an impartial arbiter of the case when the law's constitutionality is considered.

A group of 20 House Democrats led by Rep. Louise Slaughter (N.Y.) called on the Judicial Conference of the United States, the governing body for federal courts, to look into what they said were Thomas' ethical violations last year. The lawmakers charged that Thomas did not report his wife's income from the Heritage Foundation. The Judicial Conference has not responded.

A spokeswoman for House Judiciary Chairman Lamar Smith (R-Texas) said, "We have been very active with trying to get information from DOJ regarding what role Justice Kagan may have played in discussions regarding Obamacare while she was solicitor general."

Smith's Senate counterpart, Judiciary Chairman Patrick Leahy (D-Vt.), has also looked into the matter and held a high-profile hearing last year on the issue of recusal featuring Justices Stephen Breyer and Antonin Scalia.

Despite the efforts from legal observers and Members, the Supreme Court is not expected to bow to the political pressure. While Kagan abstained from Monday's decision on Freedom Watch's request, it's not considered to be a hint that she will likewise sit back when the health care law comes before the court.

"Whether it's the Congress or the courts of the executive branch, the American people don't feel like they have a voice," Klayman complained.

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