As health case looms, 2 jus­tices tar­geted

Con­ser­va­tives at­tack Kagan while lib­er­als slash at Thomas

Houston Chronicle Sunday - - THE NATION - By ROBERT BARNES

WASHINGTON — Just a lit­tle more than an hour af­ter some House Democrats re­cently de­manded an in­quiry into Supreme Court Jus­tice Clarence Thomas’ ethics, Se­nate Repub­li­cans stepped up the pres­sure on Jus­tice Elena Kagan to take her­self out of the court’s de­ci­sion on the health- care re­form act.

The process re­peated it­self a few days later. House Ju­di­ciary Com­mit­tee Chair­man La­mar Smith, R- San An­to­nio, called for the re­lease of more doc­u­ments about Kagan’s role as Pres­i­dent Barack Obama’s so­lic­i­tor gen­eral; the lib­eral group Peo­ple for the Amer­i­can Way came out with an­other broad­side against Thomas.

Ac­cu­sa­tions about both jus­tices, from the left and the right, show no signs of dis­si­pat­ing nowthat the Supreme Court has said it will re­view the con­sti­tu­tion­al­ity of Obama’s sig­na­ture do­mes­tic achieve­ment, the Pa­tient Pro­tec­tion and Af­ford­able Care Act of 2010.

Up to the judges

Jus­tices de­cide for them­selves whether they have a con­flict se­ri­ous enough to war­rant re­cusal from a spe­cific case, and nei­ther Kagan nor Thomas ap­pears to be con­sid­er­ing sit­ting out the big­gest case of the term.

Fed­eral law re­quires judges, in­clud­ing those on the Supreme Court, to dis­qual­ify them­selves when their “im­par­tial­ity might be rea­son­ably ques­tioned,” as well as for spe­cific rea­sons such as a fi­nan­cial in­ter­est or the in­volve­ment of a fam­ily mem­ber in the lit­i­ga­tion.

In ad­di­tion, it calls for re­cusal when the judge has served in the govern­ment and “par­tic­i­pated as coun­sel, ad­viser or ma­te­rial wit­ness con­cern­ing the pro­ceed­ing or ex­pressed an opinion con­cern­ing the mer­its of the par­tic­u­lar case or con­tro­versy.”

The charges against Kagan arise from her work as so­lic­i­tor gen­eral, the govern­ment’s top ap­pel­late lawyer. If she were still in the job, Ka­gan­would be de­fend­ing the health- care law at the Supreme Court rather than de­cid­ing whether it is con­sti­tu­tional.

Kagan was no­ti­fied by the White House in March 2010 — just be­fore the law was passed — that she was un­der con­sid­er­a­tion to be named to the high court. She said dur­ing her con­fir­ma­tion hear­ings that she played no role in pre­par­ing for the in­evitable le­gal chal­lenges that were to come.

“I at­tended at least one meet­ing where the ex­is­tence of the lit­i­ga­tion was briefly men­tioned, but none where any sub­stan­tive dis­cus­sion of the lit­i­ga­tion oc­curred,” Kagan said in a writ­ten re­sponse to ques­tions from Repub­li­cans on the Se­nate Ju­di­ciary Com­mit­tee.

She said she had never been asked her opinion about the un­der­ly­ing con­sti­tu­tional and le­gal is­sues in the law­suit or re­viewed govern­ment doc­u­ments filed in the case. Sim­i­larly, At­tor­ney Gen­eral Eric Holder said lawyers went out of their way to keep from in­volv­ing Kagan in the dis­cus­sions.

GOP points to emails

But con­gres­sional Repub­li­cans say emails re­leased to con­ser­va­tive groups un­der pub­lic records re­quests raise ques­tions about the White House’s con­tention she had been “walled off” fromdis­cus­sions about the health­care act. One email from then- Deputy So­lic­i­tor Gen­eral Neal Katyal says Kagan wanted to make sure her of­fice was in­volved in strat­egy de­ci­sions, although Katyal said he took the lead and Kagan was not in­volved.

An­other email seemed to in­di­cate en­thu­si­asm for the bill. In re­sponse to a mes­sage at the time of the vote from Har­vard law pro­fes­sor Lau­rence Tribe, then work­ing at the Jus­tice Depart­ment, Kagan wrote: “I hear they have the votes, Larry!! Sim­ply amaz­ing.”

Wife’s ac­tivism

Smith, the Ju­di­ciary Com­mit­tee chair­man, and Se­nate Mi­nor­ity Leader Mitch Mc­connell, R- Ky., have pressed Holder for more in­for­ma­tion, which his depart­ment has been ELENA KAGAN has drawn scrutiny from GOP over her work for Obama. CLARENCE THOMAS has drawn scrutiny be­cause of his wife’s tea party ac­tiv­i­ties. re­luc­tant to pro­vide.

Lib­eral groups say that Thomas’ con­flict comes from the po­lit­i­cal in­volve­ment of his wife, Vir­ginia Lamp Thomas, who has been ac­tive in con­ser­va­tive causes since be­fore they were mar­ried.

In 2009, she cre­ated a group called Lib­erty Cen­tral to ad­vance some of the same po­lit­i­cal causes as tea party ac­tivists, in­clud­ing the be­lief that Congress and the fed­eral govern­ment have strayed be­yond the lim­its of the Con­sti­tu­tion. She has since left the or­ga­ni­za­tion.

Lib­eral groups and some Democrats have said her out­spo­ken role cre­ates a dilemma for the jus­tice. They have called for in­ves­ti­ga­tions into Thomas’ fail­ure to list his wife’s em­ploy­ers for 13 years, as is re­quired on the jus­tices’ fi­nan­cial dis­clo­sure doc­u­ments. Vir­ginia Thomas’ em­ploy­ment was well known; Thomas said the in­for­ma­tion was “in­ad­ver­tently omit­ted.”

Last week, Rep. Louise Slaugh­ter, D- N. Y., asked Chief Jus­tice John Roberts to have the Ju­di­cial Con­fer­ence in­ves­ti­gate Thomas’ omis­sions.

The calls for re­cusal have prompted a lively de­bate among those who study ju­di­cial ethics. John Steele, a Cal­i­for­nia at­tor­ney who teaches le­gal ethics and helps run a blog called Le­gal Ethics Fo­rum, said the gen­eral con­sen­sus among those with­out a par­ti­san in­ter­est is that “we don’t have a case for ei­ther one of them re­cus­ing.”

“At the end of the day, we have to trust them,” he said, mean­ing judges must put aside per­sonal in­ter­ests to reach le­gal de­ci­sions.

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