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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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WHAT ARE YOU GOING TO DO SUE THEM? Judges, lawyers, and
cops stick together. Surely you have seen it too over
the years. The all have "Absolute Immunity" you can't touch any of
them. And if you are threatening their power then you are the problem and YOU will go to jail, or in this instance no matter what the law says you are judged wrong and there is nothing you can do about it because a judge made that decision and the judge has “Absolute Immunity.” And the lawyers have “Absolute Immunity.” And the cops have “Absolute Immunity.” You have absolutely nothing.
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When Orin Hatch, of Anita Hill Hatchet Job fame, opens his mouth to object, one immediately knows that his objection is not valid.
The Unsupreme Court members who are tainted in this matter, by the facts, are Thomas and Scalia. Do not expect the politicaly partisan Roberts court to take any ethical action. The Roberts court will rule entirely from a political respective, the Roberts court is a disgrace to the United States of America.
We will see. Can supreme court justicies be impeached? They might note that if they try any shenanigans. May the media should be checking harder to see if anyone on either side has received funds like Newt has in the past.
The grounds for recusal of a Supreme Court justice are a bit nebulous as far as I can tell from this article.
I find the one provided by Justice Kagan herself to be the most straight-forward.
"played any kind of substantial role in the process"
Now there is an accusation that while Justice Kagan was a solicitor general in the Obama administration that she played a role in the crafting of the Healthcare reform bill.
I think there is enough there to warrant investigation. If it cannot be proven that she had a roll in the crafting of the legislation within reasonable certainty then there is no grounds for recusal based on the criteria given above.
IF Justice Kagan had a role in the crafting of legislation in question then in effect we would be asking her to judge the constitutionality of her own work. Wouldn't that be like having the mother of an accused murderer serve on their own child's jury?
Justice Thomas has not been linked to the specific case that will be heard by the supreme court. The premise for recusing himself based on his association with, and financial benefit from, political entities that are against the health care reform bill would be equivalent to saying Justice Kagan should recuse herself for being affiliated with, and benefiting financially form, the political entity that generated the bill. (The Obama administration employed her while generating the bill)
It is also important to make a distinction between having an opinion on what the federal government should and should not do and determining the constitutionality of a piece of legislation. For example, the government could Raise import tariffs to 100%, the government has the constitutional right to levy tariffs. An individual can have an unfavorable opinion of that but also uphold its constitutionality. The hearings to ratify a justice are meant to ensure just that.
Just my 2 cents, thanks for reading me.
Did you hear about the event that Scalia and Thomas attended on the day the decision was made to take this to the supreme court and that they were sitting near the lawyer who will be arguing this. That isn't right. And THomas wife of all people started an organizaton to stop Obamas agenda whatever she thinks that is. I truly wonder where some of these people get their knowedge or lack of it from. Anyway what they are doing is much worse that what Kegan has done imo. One is straightforward and one is very underhanded. The underhanded is the one I would worry about. Besides I don't mind if they both go that she goes too. Rules should be followed. That is where some come up a little short though. they do everything they can and can get by with.
The Kangaroo Court ( AKA Supreme Court ) is just a bias mouthpiece for the extreme right wing. These right wing nut judges should be arrested for allowing crooked corporations and polluting oil companies to buy elections. These clowns are a disgrace to their office and America.
There is one more Scalia who attened meetings with the lawyer and people trying to derail healthcare. If one goes they all go And it sounds like Kegan is the least biased and guilty imo. We do not need republican implants deciding or ruling on legislation the congress duly voted in. Talk about poor poor losers. they got em.
To the one that said they would cancel themselves out that would be fine except they have one more who attended and was keynote speaker at a meeting for the Federalist society and who sat nearby the lawyer who will plead the casefor the republicans and this was even on the day they announced it would be handled by the supreme court. And that is someone who would rule against the healthcare bill. Let us not let our Supreme Court be sullied like a lot of our nation is these days. I say if this turns out to be unconstitutional then let's revisit the law where you have to buy car insurance. Can't be both and besides which is more important. And I hope if it is ruled out, that everyone who refuses to buy insurance is denied any gov aid for their failure to look ahead and use some common sense. and not get a penny of gov aid in case they have an accident or get sick. .Eventually we will all get sick with something even if it is a bad cold or infection where we have to visit the doctor. And I don't want to give one nickel to go to anyone who refuses to buy insurance because they want everyone else to support their poor thinking. Or they just want to defeat the president at something. It is their decision how they spend their money and it is our decision how we spend ours.
This is a facile argument that makes little sense. There is a BIG difference between seeking to recuse a Justice because of a prognostication on how the Justice may likely vote and seeking recusal because the Justice has engaged in overt acts of partiality toward a party to the controversy, including receipt of funds for supporting their position. By the former argument, virtually every Justice should be recused. We already know how Scalia and Alito will vote, recuse them. Roberts and Ginsburg are also reasonably predictable, so recuse them as well. it is a nonsensical argument.
HOWEVER, when Thomas and his wife stand ready to directly profit financially from the vote of the Justice on the case, and where he has already accepted "perks" [bribes] to induce him to vote against the health care legislation, it would be a corruption of the Judicial process to allow Thomas to sit in the case. Scalia does not have a wife or foundation taking money from the health care industry, but he has accepted financial perks for supporting their position. His vote is on the "lay-away plan" instead of purchased outright as Thomas' has been. This too represents evidence of bias and corruption which should merit recusal. If similar facts could be presented about Kagan or any "liberal" Justice, then recusal would be appropriate in those case as well. But none has surfaced so far.
The two arguments are like apples and oranges in terms of principles and logic, no matter how the conservatives try to spin them.
I think sleeping with a well-paid "lobbyist" that is working against the law calls Justice Thomas's objectivity into far more serious doubt than any meeting or email you can find Justice Kagan's name involved. She didn't write the law - she would be defending it now if she was still solicitor general, but she's not and she played no substantive role that anyone can find. An email to express amazement at its passage? There were probably millions of emails exchanged on both sides to express "amazement" that America had elected an African-American president. I know that word or variations of it were used by several of my friends and relatives who did not support Obama - so it's an opinion of the fact that something totally unexpected was accomplished! Nothing more.
Elena Kagan recused herself from the Arizona Immigration case. Now let's see if the almighty Justice Thomas will recuse himself from the Affordable Health Care Act (that is the CORRECT name not Obamacare) case. His wife, Virginia, has been a paid lobbyist for the Health care industry). Due to Thomas' and Scalia's involvement with the Koch brothers, the key proponent of the Citizens United case, we are stuck with the fact that "Corporations are people" and therefore my have more power than individuals in selecting the next President. How absolutely disgusting is that? This libertarian leaning by the 1%extreme right wingers, is an attempt to destroy our democracy by making these people even wealthier and taking our rights and monies away from us. Therefore it is my strong hope that Thomas does what is right for the American people and not for own self-interest. We need to continue to put STRONG PRESSURE on this Justice so he does recuse himself or thinks twice about his decision so his ego does not wins out. These conservatives without consciences will eventually loose but I just hope it is in time to save this country.
The federal government already makes you pay extra taxes if you don't buy a home, aren't blind, and don't have a bunch of kids. How are any of these things interstate commerce? Well there's all sorts of convoluted arguments as to how they are, but lets face it - health insurance actually qualifies more as interstate commerce than many of the "deductions" on the old 1040. The sheer magnitude of the cost of health care as it relates to the GNP would tend to make me believe that it is interstate commerce. It's certainly a tough argument any way you go. "No, the federal government doesn't have the right to tell me to buy health insurance so I can pay my medical bills", just seems a little ludicrous to me. And you can't fix that with the "no pay, no emergency room care" law, because in many cases people being treated at an emergency room may not have a verifiable identity. I understand the disdain this law creates, who likes sending out checks for their car insurance? But a responsible society needs its citizens to be responsible as well.