Former Bush Attorney General Rejects Congressional GOP Witchhunt Against Justice Kagan

In an attempt to rig the Supreme Court and ensure that the Affordable Care Act will be struck down, high ranking members of the House and Senate GOP — including Senate Minority Leader Mitch McConnell (R-KY) and House Judiciary Chair Lamar Smith (R-TX) — have made a series of increasingly improbable claims that Justice Elena Kagan must recuse herself from the lawsuit challenging health reform. This morning, however, George W. Bush’s former Attorney General Michael Mukasey puts these ridiculous claims in their place:

The [law] that potentially relates to Justice Kagan requires disqualification “[w]here [the Justice] has served in governmental employment and in such capacity participated as counsel [or] adviser concerning the proceeding or expressed an opinion concerning the merits of the particular case or controversy.” “Proceeding” is defined to include all stages of the relevant litigation.

In order to run afoul of that provision, Justice Kagan herself would have had to participate in her official capacity as counsel or adviser in the case at any stage, or expressed an opinion in her official capacity about the merits. Asked during her confirmation proceedings whether she had done so, she said no. Absent evidence to the contrary, there is no reason not to credit that denial. Statements of opinion to friends or former colleagues do not count here.

Mukasey’s op-ed also rejects calls from several progressive lawmakers for Justice Thomas to recuse himself from this case, and Mukasey is right that there is not currently any public evidence justifying Thomas’ recusal. Despite the many, many ethical issues surrounding Justice Thomas, no one has yet uncovered evidence that Thomas’ family has a current financial stake in the outcome of this litigation — although Justice Thomas’ wife did once solicit lobbying clients that could potentially raise recusal issues for her husband.