There are plenty of Republican congressmen and senators who believe that associate justice Elena Kagan should recuse herself from the upcoming Supreme Court case involving the constitutionality of Obamacare because of her service as Solicitor General.
Emails released last summer clearly showed that Kagan's interest in Obamacare exceeded the threshold by which judges should voluntarily recuse themselves:
The wrestling match over whether Supreme Court Justice Elena Kagan should recuse herself from any Supreme Court cases challenging ObamaCare continues. Since a series of emails between then-Solicitor General Kagan and her principal deputy, Neal Katyal, were made public this summer, questions have continued to percolate over whether Ms. Kagan's involvement in the case as an Obama administration official was substantive enough to warrant her recusal.
Back in July, some 49 members of Congress signed a letter asking DOJ to produce certain documents on then-Solicitor General Kagan's involvement with the ObamaCare case. Four months later the Justice Department wrote back declining to produce the documents. In that letter, Assistant Attorney General Ronald Weich explained that the department has "grave concerns about the prospect of a congressional investigation into the pre-confirmation activities of a sitting Supreme Court Justice." Justice Kagan, he added, had addressed the issue of her ObamaCare involvement during her confirmation hearings.
In a letter to U.S. Attorney General Eric Holder on Friday, GOP Sen. Lamar Smith noted that in rejecting the request for documents, the Justice Department "did not assert any legal privilege to support the decision but instead concluded it would be 'unseemly' to comply with my request." If the Justice Department does intend to assert a legal privilege, he added, he'd like to be informed of the basis for it by Friday.
According to the rules for federal recusal, judges who previously served in other government positions, as Justice Kagan did, should bow out of cases if they served as "counsel, adviser, or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy," or if the judge's "impartiality might reasonably be questioned."
DOJ doesn't have a legal leg to stand on and they know it. They are stonewalling the request because there is little doubt that Kagan's activities as SG far exceeded the threshold for recusal.
This is crucial. If Kagan doesn't vote, and 4 to 4 tie resulted, the vote would uphold the decision of a lower court judge that Obamacare's individual mandate is unconstitutional. Obviously, Kagan can count noses on the court too which is why she will refuse to recuse herself.