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This question is all about politics, not ethics: If neither Thomas or his wife has a “fiduciary interest” in the case, Justice Thomas is in the clear, says Doug Mataconis in Outside the Beltway. But this isn’t about legal ethics, it’s an attempt to “deflect attention” from Sen. Orrin Hatch’s call for liberal Justice Elena Kagan to recuse herself because of her previous work as Obama’s Solicitor General. And unlike the Democrats’ “phony” case against Thomas, Hatch has “at least an argument” that Kagan should sit this out.
“House Democrats call on Justice Thomas to recuse himself…”
Let’s leave all spouses alone: “I get that this is mostly just rhetorical jousting,” since Thomas won’t recuse himself voluntarily and nobody can make him, says Kevin Drum in Mother Jones. But either way, “it’s a bad idea” to argue that “judges’ spouses need to be apolitical creatures or that judges are responsible for what their spouses do.” That hurts women a lot more than men, and if it’s true, why not ban all lawmakers’ spouses from political activism, too?
“Keep spouses out of it”
Justice Elena Kagan was directly involved, herself, with ObamaCare. So, Justice Kagen Should Recuse Herself From ObamaCare Case This is 100% different from the Clarence Thomas situation.
Federal law requires Supreme Court justices to recuse from a case if they had earlier “participated as counsel” in the case. Justice Kagan did just that when she was Obama’s solicitor general, but has never explained why she believes she is nevertheless justified in sitting on the case under this standard.
Last week Tucker Carlson, who just hired Ginni Thomas for staff on the Daily Caller, said the same thing on Hannity. He said he saw no reason for Justice Thomas to recuse himself unless the Thomas’s are receiving fiduciary compensation. (In recent weeks, the site has picked up some high-profile new employees, including former Slate and Newsweek blogger Mickey Kaus.)
Thomas is no political shrinking violet. She’s made her name most recently as a conservative advocate and de facto lobbyist — publicly offering her services to clients of the advocacy group Liberty Central and its partner the Patrick Henry Center for Individual Liberty. She’s the wife of Supreme Court Justice Clarence Thomas, vocally opposes the health care reform law, and worked in 2010 to elect Republicans to Congress. But many (maybe most) in Washington are married to people who are in one way or another involved or working either in one of the 3-branches of government, in support or lobbying concerns, CIA or FBI or security related departments or in the media.
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.
Recusal is on a case by case basis and unfortunately up to the judge to recuse themselves. However in this case… the Obama administration knew of the conflict with Kagan and her recusal should have been provision of her confirmation.
The upcoming decision on ObamaCare is not only over changing the quality of healthcare in America, it is about how much power the government has (will have) over Americans to make us buy whatever they choose, if this is not over-turned. It will also give the federal government control over one-sixth of the budget of the United States. Look at their record… does anyone believe they are capable of that responsibility? Just like social security now… in the not so distant future there will be no money in the coffers for anyone’s (but a chosen few) to get healthcare… let alone decent healthcare or anything like what Americans have now.
Kagan was a guaranteed vote for the White House for the administration in case the constitutionality of the Affordable Care Act ended up there. Kagan is ineligible to vote on this case and the White House always knew that. But the Congress did not do their job….
Kagan should (must) recuse herself. Thomas should (need) not. Some pressure from the other judges might help… Encourage them!
Video: The Other Barak? (Aharon Barak)
Source: True Health is True Wealth