Calls for recusal intensify in health care case

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.