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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.
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revmrbill:
http://www.afj.org/press/11092011.html
http://articles.latimes.com/2011/jan/22/nation/la-na-thomas-disclosure-20110122
http://motherjones.com/mojo/2011/09/clarence-thomas-latest-ethics-trouble
There is a LOT more out there on this subject. And a LOT out there about Scalia too! BOTH have received money and gifts from individual and organizations opposed to this bill! Thomas even "forgot" to report nearly $700K in income from the Heritage Foundation which opposes the HCA! ( how do you forget $700K??)
Kagan, on the other hand, seems to have had almost no involvement in either the crafting of the bill or in crafting potential defenses!
Both Scalia and Thomas should recuse! No reason (yet) that I can see why Kagan should!
Tom,
Instead of relying on liberal or any other news articles why not just read: 28 USC 455, specifically (b)(3) and then read the emails that have been made public. There is nothing in 28 USC 455 that would require Thomas to sit out the hearing. Quit listening to the left wing press and pundits.
sfcret-- Folks read whatever they feel like reading, hence your posting of 28 USC 455. I'm highly curious, what precipitated your perusal of 28 USC 455 and was there any interpretation needed on your part?
sfcet..... Thomas took MONEY AND GIFTS from people and organizations who opposed the HCA? And you say there is nothing that prevents him from sitting in on the case. Id say there is a HUGE issue-- his wife got PAID and HE didnt report almost $700K PLUS certain real estate--- for 13 years!!!. And he's consistently voted IN FAVOR of those who paid him!!
There is NO DOUBT that Thomas AND Scalia are NOT impartial or unbiased! They cant be with their level of involvement in conservative political affairs!! There is also no doubt that they have violated the Judicial Code of Ethics that binds every other judge. They are CORRUPT!
Maynard,
I read 28 USC 455, for the simple reason that I wanted to see what the actual code said. I do not take the word of the news media without checking official sources. I wonder if you read the code and what was your interpretation? People can read the same thing and come to different conclusions as to what it means. It means you are interpreting it your way and not blindly following a news report.
Tom, I take it you didn't read the US Code I quoted and have only brought into the liberal hype. BTW, what laws did Thomas vote in favor of and who were the people that paid him? What money and gifts did he receive? If you are going to make accusations, at least try and back it up. The fact that his wife got paid or worked for an organization that is against ACA has no bearing on the issue.
BTW, only a Federal Judge can actually decide to recluse themselves since the code only sets a guideline. The libs are just upset because they are going to loose in the court.
Part One: The Recusal Statutes
(a) Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
(b) He shall also disqualify himself in the following circum- stances: (1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts con- cerning the proceeding;
(2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer con- cerning the matter, or the judge or such lawyer has been a mate- rial witness concerning it;
(3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material wit- ness concerning the proceeding or expressed an opinion con- cerning the merits of the particular case in controversy;
(4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially af- fected by the outcome of the proceeding;
(5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person: (i) Is a party to the proceeding, or an officer, director, or trustee of a party; (ii) Is acting as a lawyer in the proceeding; (iii) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding; (iv) Is to the judge's knowledge likely to be a material witness in the proceeding. (c) A judge should inform himself about his personal and fidu- ciary financial interests, and make a reasonable effort to inform himself about the personal financial interests of his spouse and minor children residing in his household.
Thomas needs to go.
Both justices Kagan & Thomas should sit out. US Supreme courts should be over see by another US government branch, independent agency or somebody, just a though
Please include Scalia in that as well - Scalia and Thomas - two peas in a pod
First of all we are" ruled by the nine" and since George bush sat the majority of the new members including the Chief Justice I don't know what the Teabagers are crying about, its a rigged court!
It's a crying shame when a Supreme Court Justice can not be counted on to JUDGE by the law/constitution...be free of bias/prejudice/political ideology. Such the case...these so-called judges shouldn't be sitting on the bench. Makes a mockery of justice.
Add appointing of Supreme Court Justices to the list of reforms needed in government.
Are there any government agencies, entities, programs or procedures that do not need to be reformed?
you may be right that there needs to be wide spread reform,but on paper the american form of gov. can`t be made much better.america really needs publicly funded elections,why should you allow a few monied people to buy the policy,they only bet on the election and then want a return.universal health care would force people to make a contribution towards health care.even a bum buying wine should pay towards health care.make everyone pay by having a sales tax and the socalled freeloaders no longer exist.too simple,go on paying money to insurance people that can`t stop a nose bleed.
All three Justices hold office for life and are imune from political pressure. It is up to each one invidually to decide if he/she will recue themselves. All of this political talk is just so much huff and puff.
Robert, they SHOULD be immune, but Scalia and Thomas are not! They have both taken money and gifts from individuals and group that espouse conservatives causes and then rule in favor of conservative causes! That is corruption of the highest order!
No other Justice has been asked to recuse themselves. Kagan brought that up when everyone was squawking she was part of Obama team. Hell Clarence Thomas was part of GHW Bush. Alito was appointed by Baby Bush.
The Supreme Court is a farce since they started being political rather than uphold the Constitution. Don't like the Constitution, change it. Citizens United.
JBurns,
Can't fault you on your argument... the Robert's Court has been the biggest circus of a court, since the founding of our nation. Every since Bush 43 starting loading the court with republican ideologues instead of judges...
That change in the Supreme Court started after the Civil War which dissolved the states rights and replaced them with Federalism. The federal government then rebuilt the states the way they wanted them as subordinate and helpless to the federal branch.
The Supreme Court now spends all of its time trying to rule on the boundaries of federal power which is a massive conflict of interest. The Supreme Court was set up to be completely unbiased in deciding the boundaries of power with the states not its own overreaching federal powers.
The responsibility of the State was originally one of protecting the people from the tyranny of federal government, to insure that the federal government did not reach beyond the bounds of the Constitution. This worked fairly effectively, until 1933 when Roosevelt assumed office.
The 1930's and FDR escalated the puppet show with the removal of common law or Constitutional law and replacing it with the UCC code or maritime law. The Republic was effectively dissolved and replaced with a corporation government easier for the bankruptcy to be executed against and payments extracted.
At this point Federalism and the Supreme Court are a full blow self serving circus.
Bobby, you clearly don't know your history
.
And the games continue. I can understand the recusal of Justice Thomas but for Justice Kagan I'm clueless. There is documentation of the ties Thomas has with his wife who lobbies stringently for the Tea Party and against the Affordable Care Act (ACA). Mrs. Thomas has received over $100k working as a lobbyist against the ACA, therefore Justice Thomas has benefited from her work. I don't believe it would have been much of an issue if she had simply volunteered but by being on the payroll turns it into a conflict of interest for Justice Thomas.
When the prevailing mood around the country says that the SCOTUS is overtly politically tainted anarchy is just around the corner!!
Listen to the rumble! ! ! !
I don't think either should recuse themself. Maybe I'm being optimistic but I would like to think that both can apply the law correctly. Whether you like it or not the mandate is almost certainly unconstitutional and I have a feeling this might atually end up being a 6-3 ruling instead of the 5-4 ruling that everyone is worried about. The actual interesting part IMO will be if the rest of the law is upheld since a lot of other sections in the bill anticipate that the mandate is in place.
Sure DOH DOH - read my post about Scalia and Thomas dining with one of the parties coming before them. Those guys are not just too old to be on the bench - my mom is 97 and has more sense (she can still recited the Gettysburg address word for word LOL) but don't kid yourself - they are human, can be bought and lean one way or another - otherwise they wouldn't be liberal or conservative judges. I haven't trusted the Supreme Court in years - I doubt if our Founding Fathers would either.
the supreme court is way down on the list of problems facing america.
hockey........ I agree. Number one on the list of problems facing the country is the Republican Party as currently constituted. WE didnt have all these financial problems before Reagan!
How about Scalia and Thomas going to a dinner put on by the law firm that is arguing against the health care case? On the day they got the case???? How come the media hasn't made toast out of that?
They only place Ive seen that reported is in the 2nd level media!
I don't really care about liberal or conservative or Republicans or Democrat. These judges or their spouse should not be involve in politics at all. And consecrate on constitution and the law of the land only.
BTW when I think I hear they rule that Corporations are people and money is speech. correct me if I'm wrong. that's to me is immoral. that's my opinion.
Nothing to see here folks, they will obediently render decisions that abide by the party line, which will cancel each other out.
This bias right wing Kangaroo Court ( AKA Supreme Court ) is a joke and a disgrace to America and their office.
I have not even read any posts nor did I completely read the article. However, how dare your report that Kagen and Thomas are being pressured but you conveniently leave out that Scalia and Thomas attended luncheons with the lawyers who are ultimately fight to have this law revoked. How dare you not bring up Scalia's name. Further,, the American people need to know that Thomas' wife has a political action commitee dedicated to getting rid of the Health care reform act. Do you all seriously believe that this man should still be sitting in on this case. Well, I guess so, assuming that you all don't care about the law but just want to win.
By the way, all you folks like me with preexisting conditions or twent something year olds, should be following this closely. These people are gunning for you. Stant up and defend the Amerian people against these clowns. Enough of their nonsense.
We allowed them to tell us that corporations are citizens and as such can buy elections. Do you all really want them to tell you that an insurance company can tell you to drop dead?
A lot of you are ignoring the real issue here. Ryan in Texas nailed it @1.44.
FORGET ABOUT THE HEALTH CARE ISSUES
Feisty, let's say you are right, and they uphold the law.
Under this interpetation of the Commerce clause, what will be the limits to the governments power?????? THERE WILL BE NONE!
Think long and hard about that people. And remember, no matter which party you are against, they will someday wield that same power!
If that doesn't scare the funk out of you, you're an idiot.
You are exactly right about the damage to citizens rights if the Supreme Court allows the commerce clause to be MIS-interpreted in this manner. But if you are asking the "lib-queen" Fiesty or any other lib to be afraid of Government over-steeping its authority, you are barking up the wrong tree. Liberals do not see Government intrusion in their lives as a bad thing, their liberals.
If Antonin Scalia and Clarence Thomas dines with the law firm Clement’s law firm, Bancroft PLLC, one of almost two dozen firms that helped sponsor the annual dinner of the Federalist Society, a longstanding group dedicated to advocating conservative legal principles and were fed at the same table by Pfizer, Inc., a huge pharmaceutical conglomerate, one would hope they abide by rules and ethics associated with their stature in the legal community. If these two do not recuse themselves from this case, then none should recuse themselves. Now, I ask every American citizen in America to consider the implications of any ruling unfavorable to the Health Care Act. Here's where I say again: The concentration of wealth in the hands of fewer and fewer people and the concentration of power in stricter, less compassionate hands in all aspects of local, state and the federal government has colored the American dream.
Rudy nobody is against healthcare. Nobody is against insurers having to cover people with pre-existing conditions. But this is a bad law. It's typical Obama, well meaning but poorly thought out and poorly executed. And if you think dining with political animals is the same as sitting on a case regarding a law that you personally helped to write, well then I can only say that you are letting your emotions overrule your logical thought processes. I doubt you even know what's in the darn thing. Did you know it contains THREE seperate "free trade" agreements? The flaws with this law are legion.
But the most basic, the most fundamental issue is that it will allow our government unfettered control over our individual economic activity. It will grant the government sweeping powers that they do not currently have.
How can you be okay with that?
Don't you understand, the healthcare is the bait on the hook! And when the hook is in you, it's too late to struggle. It's a naked power grab.
I remind you again, if you grant this power to the government, it will someday be used by the Republicans you rail against. Think about the inplications of that!
For my part, I fail to see why this is so bitterly controversial. Let the Supreme Court justices do their jobs. We all know that neither Kagan and certainly not Thomas will ever recuse themselves from a vote like this. What's even more bewildering is why so many people are opposed to allowing about 30 million more of their fellow American citizens the same opportunity for health care as they have been enjoying for most of their lives. I am the first one to say that the health care bill is far, very far, from being perfect. There is no such thing. But my God, come on people, it's a start. When Medicare first was enacted this same hysteria set in, and now we all live with Medicare as a naturally occurring event in our lives. I think we all need to grow up and try to overcome our own self-centered outlooks.
Unlike a lot of people...apparently...I honestly believe that Justice Kagan is a person of character and principle, and will have no choice but to recuse herself from this case.
I like and admire Justice Kagan very much, but it really bothered me to see her nominated to the Supreme Court for this very reason. She helped write this law, and discussed potential legal attacks and defenses for it...and there's simply no way around that. She was the Solicitor General, after all, and that was her JOB.
And without her, the best possible outcome is probably a 4-4 split...and that would enable the 11th Circuit decision (against the mandate) to stand.
I wish that President Obama had thought this through, and had either nominated another justice to the Supreme Court, or else had used Justice Kagan in another position in the White House. No matter how much pressure we exert on Justice Kagan, I don't think we'll be able to push her into NOT doing something that her own professional integrity and honesty demands.
I think it is an absolute disgrace that our country does not provide nationalized health care for its citizens. But I am vehemently opposed to this ridiculous bill that was passed.
I worked for President Obama's campaign, and voted for him...but I am absolutely opposed to this insurance mandate. (And yes, I was as bitterly opposed to it when it was recommended by a republican, as well.)
I do NOT believe that the federal government has the right to FORCE anyone to participate in a private business transaction or else be in violation of federal law. (Nor do I want it to have that power.) If the federal government has the right to force us to purchase something against our wishes, what can it NOT force us to do?
I do believe that the government has the right to raise taxes to provide single-payer coverage, and I believe that is what we should do. And I am not willing to "wink-wink" away my beliefs just to see President Obama get some kind of political win over the damn republicans, hoping that we can fix it later on.
I applaud the President for pushing hard and trying to get nationalized health care. But this ridiculous bill is an abomination, and I cannot support it.
Brian and Lakeisha, these are some of the most logical and well thought out responses that I have encountered. You both make perfect sense.