House Dems demand Thomas recusal on ObamaCare

posted at 2:55 pm on February 9, 2011 by Ed Morrissey

Consider this a little exercise in pre-emption:

Seventy-four House Democrats are asking Supreme Court Justice Clarence Thomas to recuse himself from any health care reform cases, citing reports that his wife financially benefited from efforts to repeal the legislation.

The members, led by Rep. Anthony Weiner (D-N.Y.), ask that he “maintain the integrity of this court.”

And what, exactly, are these threats to the integrity of the Supreme Court?  It’s the oft-levied charge that Ginny Thomas, Justice Thomas’ wife, and her career in political organizing and lobbying constitutes some sort of general conflict of interest for the jurist — even though no one can actually back that allegation up with any indication of wrongdoing.  They’re also complaining about the money Ginny earned at Heritage between 2003 and 2006 that Justice Thomas didn’t disclose — perhaps because he wasn’t required to do so, and also because Ginny was very publicly part of Heritage the entire time.  It’s also a little difficult to see how a relationship that ended four years prior to the passage of ObamaCare represents some untoward conflict of interest.

The purpose of this isn’t really to pressure Thomas into a recusal, at which Thomas is almost certain to issue his trademark booming laugh, but to pre-empt the recusal argument for Elena Kagan:

The move comes after Republicans have floated similar concerns about the impartiality of Justice Elena Kagan, who was solicitor general during the health debate.

This potentially has a genuine conflict of interest that relates directly to the case at hand.  While serving as Barack Obama’s Solicitor General, did Obama consult with Kagan on the ObamaCare bill?  Did Kagan provide advice to Obama and/or his allies on Capitol Hill on how to craft the bill so that she could eventually defend it when it got challenged in federal court, and especially at the Supreme Court?  If so, then Kagan’s involvement argues for a recusal when the Supreme Court hears the appeal.

Of course, the only authority that can impose a recusal is the individual justice — which is why they’re rare indeed at the Supreme Court.  Weiner and his colleagues know that there is as much chance of a recusal from Thomas on these flimsy and insulting grounds as there is that Weiner will vote to repeal ObamaCare.  This is just an effort at misdirection, to distract from Kagan’s connection to the administration that demanded ObamaCare.

Update: Cherylyn Harley LeBon at Smart Girl Politics notes that Democrats don’t seem to have a consistent concern over judicial conflicts of interest:

Here we have Susan Carney, nominated last May by Obama for a seat on the United States Court of Appeals for the Second Circuit.

Carney is married to liberal journalist Lincoln Caplan, a member of the New York Times editorial board – I wonder which one in this pair is “fake entitled?”

Caplan writes about the U.S. Supreme Court and legal issues. Have we heard from anyone asking for his resignation from the New York Times editorial board???  As recent as December, the Times editorial board called for the confirmation of “15 nominees cleared by the committee since the November election,” including Carney.

I’m sure those 74 Democrats will demand Carney’s withdrawal, just as soon as they cast their votes for ObamaCare’s repeal.


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