Health Care Strategists Take Their Battle to the Supreme Court

Democrats are putting pressure on Justice Thomas to recuse himself from sitting on the challenges to ObamaCare--rather extraordinary, since they haven't come near the court yet.  The argument is that because Ginny Thomas is a tea party activist, Thomas is required to sit this one out.  Doug Mataconis explains why they're unlikely to succeed--and why there's a stronger case for Elena Kagan to recuse herself:

The relevant law here is the Code of Conduct for United States Judges, specifically Canon 3(C)(1), which covers circumstances is mandatory:

A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances in which:

(a)  the judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;

(b) the judge served as a lawyer in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter, or the judge or lawyer has been a material witness;

(c)  the judge knows that the judge, individually or as a fiduciary, or the judge's spouse or minor child residing in the judge's household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be affected substantially by the outcome of the proceeding;

(d) the judge or the judge's spouse, or a person related to either within the third degree of relationship, or the spouse of such a person is:

(i) a party to the proceeding, or an officer, director, or trustee of a party;

(ii)  acting as a lawyer in the proceeding;

(iii) known by the judge to have an interest that could be substantially affected by the outcome of the proceeding; or

(iv) to the judge's knowledge likely to be a material witness in the proceeding;

(e) the judge has served in governmental employment and in that capacity participated as a judge (in a previous judicial position), counsel, advisor, or material witness concerning the proceeding or has expressed an opinion concerning the merits of the particular case in controversy

The only way that Justice Thomas would be required to recuse himself under this canon would be if his wife has a fiduciary interest of some kind in the outcome of the litigation or if she falls under one of the provisions of subsection (d). The fact that she may be affiliated with a Tea Party group that has taken a position on the Affordable Care Act is not, in and of itself, sufficient to meet the requirements of Canon 3(C)(1), and anyone with a modicum of training in legal ethics would know that.

But, this isn't about legal ethics, this is about politics:

The House Democrats' letter follows a suggestion made by Sen. Orrin Hatch (R-Utah) last week that Supreme Court Justice Elana Kagan should recuse herself from any consideration of the health care law's constitutionality because of her previous position as U.S. Solicitor General.

"I think that Kagan, who was the solicitor general at the time this was all done, probably should recuse herself, which means it might not be resolved by the Supreme Court," Hatch told Fox News last week. "That means the lower court decision will be the acting law."

In other words, in addition to being yet another opportunity to pay the 20 year old "Bash Clarence Thomas" game, Democrats are raising this issue to undercut the suggestion that Elena Kagan might have to recuse herself from any consideration of the Constitutionality of the Affordable Care Act. Kagan's situation is far different from Thomas's, and for that I draw your attention to Canon (3)(C)(1):

the judge served as a lawyer in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter, or the judge or lawyer has been a material witness;

Kagan served as Solicitor General during the entire time that the PPACA was being considered by Congress. If, at any point during that time, her office provided legal advice to the White House regarding the Constitutionality of the law being considered, then there's at least an argument that she should be required to recuse herself. It's not a slam-dunk argument, but it's certainly stronger than the phony one that the House Democrats are raising about Thomas.

I'm pretty sure Kagan isn't going to step out either, of course, unless Republicans find some sort of smoking gun.  But I can't imagine what that would be.
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Megan McArdle is a columnist at Bloomberg View and a former senior editor at The Atlantic. Her new book is The Up Side of Down.

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