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Kagan and Thomas face political pressure to sit out health reform case

 

Political groups are applying pressure to two of the U.S. Supreme Court's nine justices before they hear a series of cases challenging the constitutionality of President Obama's signature health reform law.

Conservative groups want to prevent Justice Elena Kagan from being among the members of the court to decide the case, which the justices announced on Monday they would hear this term. And liberal groups, similarly, want Justice Clarence Thomas to recuse himself from the case.

Their demands reflect the gamesmanship surrounding the case, which would either offer legal vindication for Obama's law, or hand Republicans a victory in dismantling it -- at the height of the election season, no less, since a decision is due in June.

Republicans have already demanded that Kagan sit out the case because of her work as solicitor general in the Obama administration during the fight over the health care law. Utah Sen. Orrin Hatch (R), a longtime staple of the Senate Judiciary Committee, has demanded that she recuse herself, and House Republicans have sought to probe the extent of her involvement in crafting the legal defense for the law.

Kagan said in written responses to questions during her confirmation process to the court that she would recuse herself "from any case in which I've been counsel of record" or in any case in which she had "played any kind of substantial role in the process." She said in her confirmation testimony that she had attended at least one meeting where pending litigation against the health law might have been discussed, but "none where any substantive discussion of the litigation occurred."

The Judicial Confirmation Network and Judicial Watch, both conservative legal groups, have called for Kagan to recuse herself. Even if she doesn't sit out the case, it would provide the right-leaning groups with a way to spin an unfavorable opinion, especially if the decision comes along slim margins.

But Kagan isn't the only target. If conservatives have urged her recusal for fear of her reliably liberal vote, then it's concern about Thomas's usually-conservative voting record that prompted liberals to urge his recusal.

Seventy-three House Democrats, led by then-Rep. Anthony Weiner (D-NY), wrote earlier this year that Thomas should recuse himself because of his wife's work with Tea Party groups in opposition to the law. The Democrats charged that Ginni Thomas had previously been compensated in part for her work against health care reform; the liberal Magazine Mother jones reported that she had received $150,000 in compensation from Liberty Central, a group opposed to the reform law, according to her husband's financial disclosure forms.

Health Care for America Now is also among the liberal groups to have joined the demand for Thomas's recusal.

All indications, though, point toward recusals for neither, meaning all nine justices would participate.

If there were to be recusals, we'd know by now. The fact that the court granted the health care cases yesterday without noting that any justice "took no part in the consideration" tell us that. But this has been clear for quite a while, because the court has handled other health care cases in past months -- such as the refusal to grant fast-track status to the case brought by the State of Virginia -- without noting any recusals.

Moreover, there's some thought that the dividing lines between "conservative" and "liberal" justices might not even apply in any usual way. For instance, Judge Laurence Silberman, the appeals court judge in D.C. who authored an opinion upholding the constitutionality of health reform, was appointed to the court by President Reagan, and has been active in the Federalist Society, a conservative legal society.

NBC's Pete Williams contributed reporting.