Recusal Wars Heat Up for the Supreme Court's Health Care Case

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Hunting season has begun for journalists and advocacy groups looking to tar the Supreme Court justices with conflict of interest issues involving their future ruling on President Obama's health care bill. On Monday, the high court announced its decision to review the constitutionality of the bill by next July. None of the justices have signaled that they will recuse themselves from the case, but that hasn't stopped others from forcing the issue. Here's a look at the recusal campaigns against each justice:

Elena Kagan Justice Elena Kagan, a former solicitor general in the Obama administration, is the central target for conservatives. Kagan was still serving under the president when the initial legal challenges to the law were being brought, and the right says her role in defending the law make her unable to make an impartial decision. It appears conservative publisher Matt Drudge thinks the mainstream media is falling behind on this issue. Today, he's leading his site with a five-day-old article by CNS News, detailing e-mails released to conservative groups by the Justice Department last week. The most-circulated e-mail shows Kagan rejoicing over the near-passage of the health care bill with Harvard law professor Laurence Tribe. "I hear they have the votes, Larry!! Simply amazing." You can see the raw documents here.

Louisiana Republican Rep. John Fleming, among others, says the Justice Department needs to explain the level of her involvement in defending the bill. "The Justice Department must answer serious questions about whether Justice Kagan has an inherent conflict of interest, which would demand that she recuse herself from the Obamacare case." Though Kagan hasn't made any remarks about recusal following yesterday's announcement, she has said previously that her role in the administration would not warrant a recusal. "During her confirmation process last year, Republican senators asked Justice Kagan whether she would recuse herself. She replied that she had no role in crafting the government’s response to the lawsuits," reports The Washington Times.

Antonin Scalia The chief target for the left is Justice Clarence Thomas on this issue, but Justice Scalia hasn't avoided criticism either. On Monday, the Los Angeles Times ran a story on how Scalia and Thomas were "feted at a dinner sponsored by the law firm that will argue the case before the high court":

Bancroft PLLC, was one of almost two dozen firms that helped sponsor the annual dinner of the Federalist Society, a longstanding group dedicated to advocating conservative legal principles. Another firm that sponsored the dinner, Jones Day, represents one of the trade associations that challenged the law, the National Federation of Independent Business ... The featured guests at the dinner? Scalia and Thomas.

The report has prompted the Rev. Al Sharpton to demand Scalia and Thomas recuse themselves, in a column today in The Huffington Post. "Sitting at different tables, Scalia and Thomas were only separated by the table of Paul Clement -- the attorney who will likely argue the case against the health care bill in front of the Supreme Court, and the man who got his start clerking for Scalia himself," wrote Sharpton. "If this isn't the most outrageous conflict of interest, then I don't know what is." Still, the only thing Sharpton can do here is pout. The L.A. Times notes that Scalia and Thomas technically haven't broken any rules. "It’s nothing that runs afoul of ethics rules. In fact, justices are exempt from the Code of Conduct that governs the actions of lower federal judges."

Clarence Thomas The recusal campaign against Thomas has been in the works for awhile. As liberal George Zomick in The Nation points out today, "This is a good time to recall that seventy-four members of Congress have signed a letter asking Justice Clarence Thomas to recuse himself from any ruling on the Affordable Care Act because of his wife's work as a conservative activist and lobbyist, where she specifically agitated for the repeal of 'Obamacare,'" he writes. "The recusal effort was spearheaded by Representative Anthony Weiner, and his resignation in June slowed the momentum around this issue on Capitol Hill—but there's still ample evidence for concern." Zomick adds, "Clarence Thomas should probably recuse himself, but it's important to note that Ginni's activities are much more likely a symptom of her husband's deep bias and antipathy towards progressive causes, not the cause of them."

So will there likely be any takers? From what has been revealed so far, most legal experts think not. Putting it plainly, James Sample, a law professor at Hofstra University School of Law who focuses on recusal issues, tells The Washington Times these accusations don't pass the bar. “I am generally one of the most pro-recusal scholars you can find, and yet I think in this instance those who are trying to argue for the recusal of Justice Kagan and Justice Thomas alike are opportunists who are trying to use a mechanism that just doesn’t fit,” he said. Still, that doesn't mean the justices' detractors won't keep trying. At any point, from now until a decision is reached, the justices can recuse themselves.

This article is from the archive of our partner The Wire.