WASHINGTON -- A conservative judicial watchdog group and Republican lawmakers are pushing for Supreme Court Justice Elena Kagan to recuse herself from hearing the case against the Affordable Care Act (ACA).
Meanwhile, liberal lawmakers are pushing for another Justice -- Clarence Thomas -- to recuse himself from the ACA case, which is on the court's docket for this spring.
In November, Judicial Watch released emails that date from Kagan's days as solicitor general for the Obama administration. They were obtained from the Justice Department under a Freedom of Information Act Request. The group says the emails show Kagan was involved in the early defense of the ACA -- before it even passed Congress.
In an email from Deputy Solicitor General Neal Katyal, dated Jan. 8, 2010 (two months before the ACA was signed into law) and titled "Health Care Defense," Katyal told a senior attorney at the Justice Department that "Elena would definitely" like her office "to be involved in this set of issues ... we will bring in Elena as needed."
Two other emails suggest that Katyal was consulting Kagan about certain aspects of the Justice Department's defense, including about a meeting at the White House on litigation surrounding the law and about choosing someone to head a group in their department to discuss challenges to the law.
And around the time the healthcare reform law passed, Kagan emailed a constitutional law professor who was working for the Obama administration and said, "I hear they have the votes, Larry! Simply amazing!"
In an email from May 2010, after Kagan was nominated for the Supreme Court, Katyal denied that Kagan had any role in discussing the Obama administration's defense of the law.
"No, she has never been involved in any of it. I've run it for the office and have never discussed the issues with her one bit," Katyal said in an email to a Justice Department spokeswoman.
Panelists at the Judicial Watch event said those emails clearly show that Kagan was involved in defending the ACA and therefore has too much vested interest to fairly decide the case.
"Many people think she's already made up her mind," said panelist Ronald Rotunda, JD, a law professor at Chapman University in Orange, Calif. and author of several legal textbooks. "And I think that's true."
Another panelist, Carrie Severino, JD, chief counsel and policy director at the Judicial Crisis Network, said just as an athlete in a big game can't turn around and be the referee in the same game, "If you've been counsel in the case, you can't later serve as judge."
Kagan has denied she was ever "counsel" or had any major role in defending the law during her time as solicitor general.
Several top-ranking Republicans have also written a letter to Attorney General Eric Holder calling for more information on Kagan's involvement in the defense of the law, and said that it appears her involvement could be grounds for recusal.
Meanwhile, 74 members of Congress signed a letter to Supreme Justice Clarence Thomas earlier this year, urging him to recuse himself from the case as well, because of his wife's involvement with several groups that strongly oppose the healthcare reform law.
Rep. Louise Slaughter (D-N.Y.) asked the Justice Department to investigate why Thomas omitted his wife's employers, including Liberty Central, a group associated with the Tea Party, and the conservative Heritage Foundation, from his financial disclosures.
Severino, who has worked as a clerk for Thomas, dismissed the allegations against him as grounds for recusal.
"People love to hate Justice Thomas," she said. "I think it's a clear smokescreen trying to distract from the issue. If there is any judge that needs to recuse themselves, it's clearly Justice Kagan, not Justice Thomas."