Be careful what you wish for.
Liberals may be worried that Supreme Court Justice Elena Kagan may have to remove herself from hearing the appeal of the federal health-care law – since records show she was at least peripherally involved and cheered the law on.
But their apparent tit-for-tat desire to also remove conservative Justice Clarence Thomas is an odd one, indeed, with far-reaching implications they, themselves, wouldn’t much like.
This page, as well as a growing number of court observers, believes Kagan is duty-bound to recuse herself from the health care case. Her office of solicitor general not only was involved in discussions of the health-care law while it was being formed, but went out of its way – in a historically unprecedented way – to inject itself into the law’s formation. When Congress was voting, Kagan wrote an e-mail to an acquaintance that painted herself as elated at the fact it would pass.
The Washington Times reported this week that the Obama administration seems to be casting doubt on Kagan’s supposed impartiality “because it won’t turn over documents detailing her role in crafting the legal strategy to defend the health-care law while she was serving in the administration.”
“Federal law,” notes The Wall Street Journal, “requires judges to step down from cases if, as a government employee, they served as ‘counsel, adviser or material witness’ on issues related to a case under consideration.”
A dispassionate view requires that she not sit in judgment of a law she clearly favored and was at least tangentially involved in. And you have to wonder about the integrity of a ruling involving such a partial participant – or a justice system that would brook it.
But the silly “Oh, yeah?” effort by liberals to argue that Thomas should also recuse himself (and cancel out Kagan’s absence) puts liberals in a box they may not want to be in.
Their complaint is that Thomas’ wife has lobbied against the law.
There’s an interesting argument for the left: that a wife of a judge shouldn’t have the freedom to be her own person, have whatever job she likes. Do liberals really want to go there? Don’t they hold themselves up as woman’s best friend? What would happen if Thomas and other judges had to withdraw from cases because of their wives’ work? Wouldn’t that necessarily put downward pressure on a woman’s career pursuits?
Liberals had better be careful what they wish for.