I hadn’t written about the dual efforts to knock Justice Kagan and Justice Thomas off the Supreme Court panel considering the constitutionality of Obamacare’s individual mandate, because it is so obviously politics masquerading as ethics. I also though they would stop soon, since there is no chance either Justice will recuse at this point, and neither should.
The controversy is still occupying newspapers, blogs and talking heads, however, so I suppose it is worth discussing, especially to make this point: what concerns those seeking recusal is that they know, or think they know, how each Justice will vote on the issue, and they want to rig the process by finding a technicality that will prevent one or the other from participating. Does anyone really think that Kagan’s previous work as Solicitor General under Obama will bias her already liberal leanings? No. Does anyone really believe that Clarence Thomas would vote for an interpretation of the Constitution that opens that door for Congress to demand that we buy whatever it tells us to, were he not trying to please his conservative wife? Tell me another. Both recusal arguments are intellectually dishonest attempts to interfere with full judicial consideration of a politically explosive matter.
Justice Kagan has already recused herself appropriately from many cases in which she directly participated while Solicitor General. She was not directly involved in the health care bill, and the main argument for her recusal appears to be an e-mail in which she expressed her excitement that the bill was going to be passed by the Senate, writing to friend and colleague (and Constitutional scholar) Lawrence Tribe, then also in the Obama Administration,
“I hear they have the votes, Larry!! Simply amazing.”
Translation: “Go Team!”
This is nothing. Unless some evidence surfaces showing that Kagan advised or reviewed the bill (and perhaps if she had, the risky individual mandate wouldn’t be there), the argument for her recusal is far-fetched and without merit.
If anything, the argument for Thomas to recuse is even worse, and hypocritical as well. Many of the Democrats making the claim were applauding when Judge Steven Reinhardt refused to recuse himself from the three judge panel considering the constitutionality of California’s ban on same sex marriage. Reinhardt is a reliably liberal judge whose wife is head of the ACLU, which was far more involved in efforts to overturn Proposition 8 than Ginny Thomas is in opposing the individual mandate. Reinhardt wrote:
“My wife’s views, public or private, as to any issues that may come before this court, constitutional or otherwise, are of no consequence. She is a strong, independent woman who has long fought for the principle, among others, that women should be evaluated on their own merits and not judged in any way by the deeds or position in life of their husbands (and vice versa). I share that view and, in my opinion, it reflects the status of the law generally, as well as the law of recusal, regardless of whether the spouse or the judge is the male or the female.”. . .
“Proponents’ contention that I should recuse myself due to my wife’s opinions is based upon an outmoded conception of the relationship between spouses. When I joined this court in 1980 (well before my wife and I were married), the ethics rules promulgated by the Judicial Conference stated that judges should ensure that their wives not participate in politics. I wrote the ethics committee and suggested that this advice did not reflect the realities of modern marriage–that even if it were desirable for judges to control their wives, I did not know many judges who could actually do so (I further suggested that the Committee would do better to say “spouses” than “wives,” as by then we had as members of our court Judge Mary Schroeder, Judge Betty Fletcher, and Judge Dorothy Nelson). The committee thanked me for my letter and sometime later changed the rule. That time has passed, and rightly so. In 2011, my wife and I share many fundamental interests by virtue of our marriage, but her views regarding issues of public significance are her own, and cannot be imputed to me, no matter how prominently she expresses them. It is her view, and I agree, that she has the right to perform her professional duties without regard to whatever my views may be, and that I should do the same without regard to hers. Because my wife is an independent woman, I cannot accept Proponents’ position that my impartiality might reasonably be questioned under § 455(a) because of her opinions or the views of the organization she heads.”
And that’s the way it will have to be, unless we want to make marriage a career impediment. The Washington Post quotes former Justice John Paul Stevens as opining that “I wouldn’t think there’s any possibility that any of the activities of Mrs. Thomas have had any impact on the analysis of Judge Thomas.” The Post reported that Justice Stephen G. Breyer also called it a “false issue.”
The final and best word on the subject comes from John Steele, a California lawyer and legal ethics expert who founded the excellent Legal Ethics Forum. Steele flatly says that there is no legitimate case for either recusal. “At the end of the day, we have to trust them,” he told the Post.
I, for one, do trust them. I think I know how they will both vote, but it won’t be because of any undue influence or conflict of interest.
And they just might surprise us.