In anticipation of the Supreme Court deciding next year whether part of President Obama’s health-care reform is Constitutional, partisans on both sides are demanding that certain Justices recuse themselves.
Conservatives are pointing to an e-mail Elena Kagan sent to Harvard Law Prof. Laurence Tribe about the health-care reform while she was soliciter general in the Obama administration.
“I hear they have the votes, Larry!! Simply amazing,” she wrote in 2010.
During a Senate Judiciary Committee hearing where Republican Jeff Sessions was grilling Attorney General Eric Holder about Elena Kagan’s role during the health care reform debate. Holder explained that Kagan was specifically excluded from working on issues related to the health-care reform.
Well, I can tell you that certainly one of the things that we did while she was solicitor general was to physically—physically, literally move her out of the room whenever a conversation came up about the health care reform legislation. I can remember specific instances in my conference room where when we were going to discuss that topic, we asked that Justice Kagan to leave and she did,” Holder said at a Senate Judiciary Committee oversight hearing.
Further, Ed Whelan of the conservative Ethics and Public Policy centre points out that Kagan specifically assigned her deputy, Neal Katyal, to lead “a group to get thinking about how to defend against inevitable challenges to the health care proposals that are pending.”
On the other side of the aisle, liberals are pointing to the fact that Clarence Thomas’ wife, Ginni has founded a conservative activist group dedicated to opposing President Obama’s agenda as a conflict of interest.
George Zornick of The Nation writes:
This created immediate concern among legal experts, who were worried about the obvious conflict of interest, given that her husband would likely rule on challenges to the law. Moreover, Liberty Central was taking unlimited and secret donations, something aided by Clarence Thomas’s ruling in Citizens United.
Despite partisan bickering there is almost no chance that any Justice will recuse themselves. Conflict of interest rules are rather flexible. And so far neither of the cases being made are compelling.
The truth is that this is one of those cases where the Supreme Court’s ruling has direct and immediate political consequences. Although most Supreme Court-observers are confident that Obamacare’s individual mandate will be upheld in Court, activists on both sides will attempt to delegitimize any decision that goes against them by portraying it as a “political” decision rather than a coldly legal one.
One thing is certain: the composition of the Court itself will become a major campaign issue next year.
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