Representative John Fleming (R) of Mississippi, penned a letter to the House Judiciary Committee (PDF), asking that Supreme Court Justice Kagan be investigated as to her involvement in preparing the legal defense of the Patient Protection and Affordable Health Care Act while she was the Solicitor General. Fleming's letter, signed by 48 other Republican Congressman, references email correspondence obtained by the Judicial Watch which indicate Kagan was involved in discussions to some extent. But more information is needed to determine how involved she was. The purpose of the letter is to have the Judiciary Committee to investigate and determine whether or note Justice Kagan should recuse herself from any health care reform cases that come to the Supreme Court. But there's actually something more serious going on here.
The letter references Title 28 of the United States Code, Section 455 as the law that governs a justice disqualifying herself if she has "...served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy." (bolding mine) The key here is defining "the proceeding" or "the particular case in controversy."
When testifying before the Senate last year, Kagan denied being involved in any substantive discussions. What this letter does is accuse Justice Kagan of perjury which is a far more serious matter than a self-recusal from hearing a case on health care reform legislation. If it can be proved that she lied in her testimony then she could be impeached.
In the meantime, the fact that Justice Clarence Thomas and his wife have greatly benefited from and been involved with Koch brothers and others or that Thomas failed to disclose his wife's earnings of $686,589 over 5 years does not raise Congressional questions about his ethics or possible conflicts of interest.
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