Two recusals? Really?

Tit-for-tat liberals haven't thought their plan all the way through

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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.

Comments (17) Add comment
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Brad Owens
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Brad Owens 12/10/11 - 01:36 am
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She is liberal and supported

She is liberal and supported Obamacare, get over it. I am sure Roberts would have oppsed it if the situation had been reversed.

You can't stack the deck in your favor, only Presidents can do that, and the USSC cannot be bullied.

Brad

wtinney
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wtinney 12/10/11 - 02:05 am
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First, please remember, when

First, please remember, when democrats and liberals set back women's liberation the media and pro-women's liberation groups are incredibly silent (and if not silent, down-right supportive of the move). We saw this with Bill Clinton and his antics in the Oval Office as well as dozens of other examples that have happened since.

Second, get out of your heads that the Supreme Court is some impartial deliberating body. It is most certainly not independent even though they say, as well as court supporters, that it is. The court system is beholding to political pressures, ideologies and activism - the same as all other institutions of government. Those black robes can wrap themselves up in the Constitution all they want but after seeing decisions like Roe v. Wade, Texas v. Lawrence, the Kilo case, campaign finance funding rights of "corporations" and organizations, forwarding some farce of judicial independence is a little hard to swallow even by the most passive of court observers.

The AC editorial staff should be well aware of these two points making this whole editorial piece moot.

Riverman1
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Riverman1 12/10/11 - 07:54 am
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I've decided the Supreme

I've decided the Supreme Court has become an activist mechanism through the years that doesn't hold the Constitution in high regard. Most legal scholars will tell you as much. The court makes the law fit what the people want. Instead of having the court rule on things, let's just vote on every issue.

robaroo
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robaroo 12/10/11 - 08:09 am
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The conservative media wants

The conservative media wants people to ignore clear cut conflicts of interest when it doesn't favor their agenda. Justice Thomas's wife was a lobbyist against the law. The Thomas's made money fighting against it. How clear cut of a conflict of interest do you want?

wtinney is right, the Supreme Court is highly political. I don't think either justice will recuse himself.

southernguy08
532
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southernguy08 12/10/11 - 08:32 am
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A liberal recuse herself? Oh,
Unpublished

A liberal recuse herself? Oh, perish the thought. We all know liberals ARE NEVER WRONG!

Techfan
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Techfan 12/10/11 - 08:43 am
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When you see the AC quoting

When you see the AC quoting the Moonies you know it's going to be an out there editorial. Kagan had an opinion on the bill. Thomas and Scalia were flown around the country and wined and dined by groups that are against the bill. Thomas, great legal mind that he is, doesn't understand a simple discclosure statement and manages to list his wife's income as zero for over 20 years.? Just ignore the almost $700,000 his wife brought home from groups that oppose the bill. Most would call that bribery, which should get him impeached from the bench, much less a recusal.

dichotomy
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dichotomy 12/10/11 - 09:38 am
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Well Techfan, the law hangs

Well Techfan, the law hangs on technicalities. Technically, no judge is obligated to recuse themselves for the activities of their spouse. Thomas does not have the right to slap his wife around a little bit and tell her that she cannot pursue her own career or interests. Kagan, on the other hand, was directly involved, and a strong advocate, for Obamacare. There is written proof of her involvement and of her giddy elation at the prospects that Obamacare would pass. Technically, she is obligated to recuse herself and technically Thomas is not. I suspect that neither will voluntarily do so.

bjphysics
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bjphysics 12/10/11 - 10:24 am
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dichotomy: “…the law hangs

dichotomy: “…the law hangs on technicalities. Technically, no judge is obligated to recuse themselves for the activities of their spouse…”

Here’s a real technicality for you; the provisions of Title 18/Part 1/Chapter 21/Section 455 do not apply to the Supreme Court, they apply to all courts below the Supreme Court. This derives from the fact that under Article III, Section 1; Congress gets the power to establish and make all the rules for the lower courts but the Constitution (not Congress) establishes the co-equal Supreme Court.

“The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.”

harley_52
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harley_52 12/10/11 - 11:48 am
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Excellent point, bjphysics.

Excellent point, bjphysics. There is no LAW compelling a recusal of a Supreme. It's an ethical issue. Here's a little reading.....

http://www.afj.org/judicial_ethics_sign_on_letter.pdf

So it's an opportunity for Justice Kagan to demonstrate whether or not she's an ethical Justice.

Or not.

Any bets?

Jane18
12332
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Jane18 12/10/11 - 12:34 pm
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I bet she won't! She may have

I bet she won't! She may have ethics(some), but, let's see if she has the morals to do the right thing................

Techfan
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Techfan 12/10/11 - 02:19 pm
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When Thomas and Scalia, who

When Thomas and Scalia, who get around trip free rides to numerous Koch brother strategy sessions, funded by the Kochs and groups that are lobbying against the healthcare bill recuse themselves, maybe she'll think about it.
http://images2.americanprogressaction.org/ThinkProgress/secretkochmeetin...

Techfan
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Techfan 12/10/11 - 02:25 pm
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"Hey, we're right wing

"Hey, we're right wing lobbying groups, how about we give your wife a job and she'll bring in over a million bucks. Of course we wouldn't expect all of that money to influence your decisions, nudge, nudge, wink wink, Say no more."

harley_52
26147
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harley_52 12/10/11 - 05:38 pm
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Techfan said "When Thomas and

Techfan said "When Thomas and Scalia....."

What are you talking about? I didn't see either name on that link you posted. Did you hope to prove something by posting it?

harley_52
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harley_52 12/10/11 - 05:42 pm
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Techfan said ""Hey, we're

Techfan said ""Hey, we're right wing lobbying groups, how about we give your wife a job and she'll bring in over a million bucks. Of course we wouldn't expect all of that money to influence your decisions, nudge, nudge, wink wink, Say no more.""

What was that?

You are presenting that as a quote from whom?

You know what quotation marks mean, right? That you are presenting the verbatim statement of some other (identified) person.

Who made that statement?

Or did you just make it up trying to attribute it to some Conservative?

Don't you agree if you just made it up it's both juvenile and dishonest, in other words typical from the left?

bjphysics
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bjphysics 12/10/11 - 11:51 pm
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harley, likewise for Thomas

harley, likewise for Thomas but no justice is going to recuse on this one, they will have a rationalization for not doing so; despite the known facts on both sides of the ideological divide. Let’s not fool ourselves on each side’s undying fake chivalry and dedication to false honorable behavior.

harley_52
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harley_52 12/10/11 - 06:27 pm
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bj, I'm not fooling myself

bj, I'm not fooling myself about anything.

I agree it's likely neither will recuse themselves, but not because neither should. Kagan should because of what we know about her predisposition on the case and her known bias. It would be the ethical thing to do.

Thomas gets dragged into this simply because the left seeks to find some moral equivalence to use as evidence why she won't take the course of action ethics would demand and Thomas' wife happens to be a handy target to justify Kagan's non recusal. Since they hate Thomas anyway it's a twofer.

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