Tuesday, December 6, 2011

Supreme Court Recusals- Should Kagan & Thomas Oblige?

As we wait for the United States Supreme Court to hear arguments over Obamacare, the debate on whether Kagan and Thomas, should recuse themselves from hearing the case is heating up.

Let’s look at the history of both Kagan and Thomas regarding Obamacare, so we are fully clear on whether either one, or both, should step aside from hearing the case.

The bill was passed by Congress and signed into law in March 2010, while Kagan was still in the solicitor general's office, and was immediately under threat of constitutional attack in the courts. At the same time, Kagan became aware that Obama was considering her to replace Justice John Paul Stevens on the high court and has said that she began to scale back her involvement in ongoing matters in her office.

During her confirmation hearing, she testified that she played a minimal role in the Justice Department’s efforts to develop a litigation strategy to defend the law

But seizing upon documents obtained in a Freedom of Information Act request, Republicans contend she may have been more deeply involved than she let on.

Specifically, they point to several email chains that detail the administration's prep work for countering the parade of lawsuits then being filed across the country, emails that as late as March 21, 2010, carried Kagan’s name. Kagan also cheered the bill’s passage in an email to another Obama legal adviser, Laurence Tribe, the Harvard University law professor. “I hear they have the votes, Larry!!,” Kagan wrote. “Simply amazing.” She also has admitted to attending at least one meeting in which the litigation was discussed.

The DOJ documents that have been made public show that Kagan was personally involved in advising how to defend against challenges to the healthcare law.

Federal law requires recusal when a judge previously served as a government lawyer on the matter.

On the other shoe, House Democrats have been calling for Thomas to step aside from the healthcare suit because his wife, Virginia ‘Ginni’ Thomas, has worked for a conservative group that have a stake in the outcome of the litigation.

Earlier this year, 74 Democrats sent a letter to Thomas asking him to recuse himself because of Ginni Thomas’ has worked for a conservative group that have spent considerable resource in actions taken to repeal the litigation.

The Law:
Title 28 of the United States Code (the Judicial Code) provides standards for judicial disqualification or recusal. Section 455, captioned that a judge is disqualified "where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding"; when the judge has previously served as a lawyer concerning the same case or has expressed an opinion concerning its outcome; or when the judge or a member of his or her immediate family has a financial interest in the outcome of the proceeding.

So, with this knowledge presented, it appears the Kagan has more leaning against her to recuse herself.

As for Thomas, at this point, his wifes, “financial interest” is pretty clear. Ginni started a nonprofit lobbying group, Liberty Central, to organize conservative activists. Her only connection to the case is someone who contributes to the group, might be involved in the case heading to the Supreme Court.

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