Calls for recusal intensify in health care case

ByJoan Biskupic, Usa Today
November 20, 2011, 10:10 PM

WASHINGTON -- In the months before the Supreme Court announced it would hear an important health care dispute, partisan critics called for Justices Elena Kagan and Clarence Thomas to sit out the case because of alleged conflicts of interest.

Since last week's court order agreeing to take up the constitutionality of the President Obama-sponsored health law, complaints about the two justices have grown louder.

The latest developments suggest the ruckus will remain a sidelight to the politically charged dispute. The consolidated cases, focused on whether Congress had the power to require most Americans to buy health insurance by 2014, will be heard early next year. A decision is likely in June, right before the Democratic and Republican conventions for the 2012 presidential election.

On Friday Senate Republican Leader Mitch McConnell asked Attorney General Eric Holder to provide more information about Kagan's involvement in strategy on defense of the law. The Affordable Care Act was signed in March 2010 when Kagan was solicitor general, the government's top lawyer at the court. Obama appointed Kagan a few months later to succeed retired justice John Paul Stevens.

Kagan, who like Thomas is participating in the cases, has said she never offered a view on the merits of the litigation or strategy to defend the law.

Also on Friday, some House Democrats who earlier this year urged Thomas not to sit on the health care case because of his wife's vigorous opposition to the law sent a letter to the U.S. Judicial Conference, repeating their concerns about Thomas' earlier failure to disclose financial information related to the work of his wife, Virginia, an outspoken conservative affiliated with the Tea Party. Thomas in January corrected the omissions dating back more than a decade.

Virginia Thomas, who worked for the Heritage Foundation and in Congress for then-House majority leader Dick Armey, helped found the conservative group Liberty Central in 2009. She has since left the group.

Rep. Louise Slaughter, D-N.Y., took the lead in Friday's letter targeting Thomas. Signed by 52 Democrats, it calls for an investigation into whether Thomas' disclosure errors were "willful." Thomas has said the information was "inadvertently omitted." Last February, 74 House Democrats asked Thomas not to participate in the health care case. That group was led by Rep. Anthony Weiner, N.Y., who resigned in June after a scandal over lewd online messages.

Separately Friday, Nan Aron, president of the liberal Alliance for Justice, said, "the concerns being raised about possible conflicts affecting Justice Clarence Thomas' ability to properly hear the health care cases are serious and they deserve to be taken seriously." Aron said the group wanted Thomas to issue an "explanation justifying why he thinks he can be impartial."

None of the parties in the health care challenges, initiated by 26 states and the National Federation of Independent Business, has asked Kagan or Thomas to withdraw. Decisions on whether to recuse are up to an individual justice.

Law professors such as New York University's Stephen Gillers say no basis has emerged to force either justice to pull out under statutes requiring that judges not sit if they advised on a case or if their impartiality might "reasonably" be questioned.

"I have seen nothing that would require Justice Kagan to recuse," Gillers said. He stressed that federal law requires judges to step off a case if, as a government lawyer, they had worked or advised on the case, but not if they merely favored policies behind a law at the heart of the case.

Gillers said that the provision related to when impartiality might be questioned is focused on what a fair-minded person, without an agenda and knowing all the facts of a situation, would believe.

Of Justice Thomas, Gillers added, "I think we have to adamantly avoid imputing to a judge even the most vociferously expressed views of a spouse."

Northwestern University law professor Steven Lubet emphasized that ethics rules are concerned with judges who might have earlier served as counsel in a dispute. He added that the health care litigation raises interests related to a judge's "duty to sit." If one of the nine recused, Lubet says, there could be a 4-4 split on the merits, leaving conflicts in lower courts over the constitutionality of the law.

"This is the paradigm case where the participation of all the justices is important," he said.

During her Senate confirmation, when Republicans asked about health care litigation, Kagan said, "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 also said she had not been asked her opinion on the merits of the case filed by the states and said she did not offer her view on legal strategy.

Kagan and Thomas declined to comment last week about the recusal issue.

McConnell said he believes Kagan might have been more involved than acknowledged, based on Justice Department e-mails released in response to Freedom of Information Act requests by conservative groups such as the Judicial Crisis Network.

The e-mails, however, offer no clarity about Kagan's work and even suggest she delegated the case to others so she would be shielded if she joined the court and had to rule on the dispute.

The letter from McConnell, of Kentucky, was joined by Republican Whip and Arizona Sen. Jon Kyl, Iowa Sen. Chuck Grassley, the senior Republican on the Senate Judiciary Committee, and Utah Sen. Mike Lee, also a member of the Judiciary Committee.

Also last week, a group of conservative leaders, including Phyllis Schlafly of the Eagle Forum and Gary Bauer of American Values, asked House Judiciary Chairman Lamar Smith, R-Texas, to hold hearings to determine Kagan's role in the administration's defense of the law.

McConnell, in urging Holder to reveal more information about Kagan's role, pointed to a recently disclosed March 2010 e-mail exchange between Kagan and Harvard Law professor Laurence Tribe, then a Justice adviser, in which Kagan wrote, "I hear they have the votes, Larry!! Simply amazing."

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