ObamaCare & Recusal

By Dave Andrusko 

Justice Clarence Thomas

With the stakes raised by the Supreme Court’s decision to review ObamaCare so high, it’s not surprising that a law that is as all-embracing as it is unpopular should find proponents and opponents scrutinizing the justices for any hint they would be less than impartial. However since there is little or no chance that either Justice Clarence Thomas or Justice Elena Kagan will recuse themselves (not take part in) from the case, we’ve not talked a lot about the issue.

But an editorial in today’s Washington Post illustrates how supporters of ObamaCare can see the absurdity of the “case’ against Justice Thomas yet in a kind of phony-baloney even-handedness find a reason why Justice Kagan should not disqualify herself. As such let’s talk briefly about the matter.

Justice Elena Kagan

Justice Thomas’s wife is a political activist but is neither “directly involved in the case nor stands to profit from the matter,” the Post editorializes. That’s the major reason it’s an “easier call.” (Besides, “Judges should not be saddled with the viewpoints of their spouses.”)

How about Justice Kagan, who was Solicitor General during the time ObamaCare was pushed through Congress? Her “situation presents a more delicate and difficult question.”

The Post offers the usual excuses, which include the self-serving insistence by the Obama administration and Justice Kagan and the Obama administration that she was “walled off” from health-care matters in early March 2010, the Post writes, “after she was informed that the president wanted to consider her for an expected high-court vacancy.”

Then the Post brings up a single potentially troublesome point, only to dismiss it with a strangely weak justification:

“But then there’s this: ‘I hear they have the votes, Larry!! Simply amazing.’ Larry is Laurence Tribe, a colleague at the Justice Department when this e-mail was sent in late March 2010, on the eve of the health-care bill’s passage. The specter of a future Supreme Court justice appearing to cheer the success of legislation she would one day be asked to judge does not square with the Platonic ideal that those on the high court should have no preconceived notions. But is this celebratory e-mail enough to force Justice Kagan’s recusal? We do not, on balance, believe so.”

Why? The long and the short of it is that “Justices are not blank slates. They come to the court with personal views on a range of policy and political issues” and the Post is confident Justice Kagan will” set aside” her “personal preferences.” Oh.

By limiting potentially disqualifying actions to a single two sentence exchange (and giving Justice Kagan an easy pass on that), the Post’s favorable verdict on behalf of Justice Kagan continuing involvement is virtually inevitable.

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