Should the state attorney general be compelled to represent state government in court, even when there are significant ideological differences?
That question is at the heart of a growing political fracas that has some Republican lawmakers calling for Attorney General Kathleen Kane to be impeached, even as she says of herself: “I believe this is the right time for me to be the attorney general.”
Kane, a Democrat, visited the CDT on Wednesday and said none of the controversial moves she has made since taking office have been motivated by politics.
That would include her decision to not represent the state in its defense of its law banning same-sex marriage.
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“I don’t play politics,” Kane said.
“I don’t care to play politics.”
On the flip side, State Sen. John Eichelberger, a Blair County Republican, told me Kane is “the most political attorney general in the state’s history.”
Kane said her opposition to the Defense Of Marriage Act (DOMA) means she cannot defend challenges to that law. The American Civil Liberties Union and lawyers for 10 gay couples sued the state in an attempt to overturn DOMA.
Kane said although she is lawyer to the governor and commonwealth agencies, anytime she disagrees with a state position, she is “obligated to step aside.”
“They deserve representation in court,” Kane said. “They can’t get it from me. So I had to withdraw from the case.”
Kane’s stance on DOMA put her in direct conflict with Gov. Tom Corbett, whose investigation of allegations against Jerry Sandusky when Corbett was the AG has been under her magnifying glass.
“I chose not to be the governor’s lawyer,” Kane said. “I am the attorney for the people of Pennsylvania. I have 12 million bosses.”
Eichelberger and others disagree.
He took his stance publicly on Thursday before business leaders in Bedford County. At that same gathering, Eichelberger said, Republican state Rep. Carl Walker Metzgar, of Somerset County, said Kane’s unwillingness to represent the governor and state government had the makings of “a constitutional crisis.”
Eichelberger pointed to Montgomery County, where the register of wills ignored the state law and issued dozens of marriage licenses to same-sex couples.
“When the attorney general fails to uphold the law, and then when county officials follow the lead, we have a real problem on our hands,” Eichelberger said in a phone interview Friday.
“She’s not the legislature or the judiciary, she’s the attorney general,” he said. “And with that office comes certain responsibilities. One of those is defending the commonwealth in court if any of our laws are challenged.”
Eichelberger questioned Kane’s stances in numerous areas, including gun permitting, voter ID, and privatizing the lottery and liquor sales.
“We’ve seen her come out on all of these more liberal issues,” Eichelberger said.
He noted that Kane’s stances have frequently put her at cross purposes with the governor, whose job she might like to have some day.
Corbett will be up for re-election in 2014.
“It’s interesting that Tom Corbett was in the exact same role as attorney general, but as a Republican with a Democratic governor,” Eichelberger said. “I don’t recall any situation where he was in direct conflict with the Rendell administration.”
Kane said the biggest surprise she encountered upon moving into the AG’s office was the pervasiveness of politics, even though she had just won hard-fought primary and general elections in 2012.
“The political play in this state is incredible,” Kane said. “Everyone is so afraid of the next election and how they look.”
Right now, Eichelberger acknowledged, the incumbent Republican governor doesn’t look too good. Corbett’s poll ratings are low and daily battles with the state’s top legal officer haven’t helped his cause.
Eichelberger applauded the governor’s push to get the state out of the lottery and liquor businesses, his support for transportation funding and his efforts to enact a voter ID law.
The senator called Corbett “a horrible communicator” who has been “playing defense” rather than stepping out on the issues.
“The clock’s running with him,” Eichelberger said. “He’s been doing better, but he’s missed much of his best window of opportunity. When he got elected, he had much more political capital.”
Kane doesn’t seem interested in easing up on the pressure — even if, as she said, politics is not her motivation.
“I have a strong stomach,” Kane said. “I have thick skin.”