As health case looms, 2 justices targeted
Conservatives attack Kagan while liberals slash at Thomas
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.”
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.