Kagan, Thomas Pressured to Recuse Themselves from Health Care Case

Only one day after the high court decided to hear the case, there is political pressure from both sides of the aisle calling for both Justice Elena Kagan and Clarence Thomas to recuse themselves from a Supreme Court decision on the Obama administration’s health reform law.

Conservatives are calling for Kagan, a more liberal voter, to recuse herself because of her work as a solicitor general in the Obama administration in which she had to push in favor of the healthcare reform. Among those calling for her to recuse herself is Utah Sen. Orrin Hatch (R), a longtime staple of the Senate Judiciary Committee. Hatch told The Hill that “it would be most appropriate for Kagan to decline participation in cases on healthcare reform,” because of her role as solicitor general.

Right-leaning groups such as the Media Research Center and Judicial Watch pushed the Department of Justice (DOJ) to release an email exchange between Kagan and Supreme Court litigator Professor Laurence Tribe who was then serving in the DOJ.

Among other emails that express Kagan’s excitement about passing healthcare is this one:

“I hear they have the votes, Larry!! Simply amazing,” Kagan said to Tribe in one of the emails.

Conservative groups are using this as fuel to call for her recusal.

According to article 28 of the US Code 455, a Supreme Court justice must recuse from “any proceeding in which his impartiality might reasonably be questioned.” The law also says a justice must recuse anytime he or she has “expressed an opinion concerning the merits of the particular case in controversy” while he or she has “served in governmental employment.”

During her confirmation hearings, Kagan said she would recuse herself “from any case in which [she has] been counsel of record” or where she has “played any kind of substantial role in the process.” In her hearings she testified that she had not had any discussions “where any substantive discussion of the litigation occurred.”

Russell Wheeler, visiting fellow at the Brookings Institute, told The Christian Post that he didn’t see any substantial evidence against Kagan saying that she should step down.

“If she really thought her impartiality was compromised, she would step down. No justice wants to say that he or she didn’t have prior contact with the case only to be proven wrong in the near future. No Justice is going to try and pull a fast one, especially in today’s high tech society where the truth will eventually be found out.”

But it’s not just Republicans who are on the attack. Liberal groups are targeting Thomas, a more conservative voter, because of his wife’s work with the Tea Party groups in opposition of healthcare. The liberal magazine titled Mother Jones reported earlier that his wife, Ginni Thomas, has received $150,000 for her work at the conservative organization Liberty Central. According to USA Today, more than 70 democrats wrote Thomas this year urging him to recuse himself saying “the line between your impartiality and you and your wife's financial stake in the overturn of health care reform is blurred."

"Your spouse is advertising herself as a lobbyist who has "experience and connections" and appeals to clients who want a particular decision -- they want to overturn health care reform."

However, neither Justice is likely to step down, pundits say.

“This is all political maneuvering,” Wheeler continued.

“What we see in these calls from both Republicans and Democrats is less concern about judicial impartiality and more interest in politics.”
Wheeler explained that if either party could chase one of the Justices off the case, then that might tilt the odds in their favor.

However, even if the Justices aren’t taken off the case that could give the losing side ammunition to undermine and weaken the legitimacy of the decision by claiming the vote was tainted.

In any other court, if a justice recuses him or herself, then another judge will simply take his or her place. However, that is not the case with the Supreme Court. If the court has one less member and the vote comes to a standstill at 4-4, then the decision of the lower court will stand.

The high court expects to have a decision by June.