Reckoning that the best defense can be a good offense, conservative activists now have amped up their efforts to force Supreme Court Justice Elena Kagan to recuse herself from the looming High Court showdown over the Patient Protection and Affordable Care Act. But when you compare the latest points in their "recusal case" to ones offered by progressive activists pressing Justice Clarence Thomas to step aside in the fight over the new health care law, it just isn't a close call.
The new charges against Justice Kagan come from a conservative website run by the Media Research Center which in turn is run by the seemingly ageless Brent Bozell. Following a Freedom of Information Act request of the Justice Department, the Cybercast News Service posted a long take last week based upon internal emails between DOJ officials discussing the formal government defense of the Affordable Care Act. The piece is a good read -- mostly because it gives ammunition to both sides in the partisan war over the Court.
It gives conservatives fuel for their theory that Justice Kagan's hands were all over early federal strategy in the pending Care Act litigation, a status that would generate another statutory reason for her to consider recusing herself (remember, no one can force her to do so). In this world, the DOJ emails indicate (or imply, anyway) that Kagan was a wily operator who was smart enough not to create a "written" record about her involvement in the law's defense. But the piece gives progressives ammunition, too. If this is the best Bozell and company can do to link the junior justice to the Care Act, it's small beer -- and hardly worthy of yet another recusal for Kagan.