Health Care News: Should Justices Thomas and Kagan Recuse Themselves From HCR Fight?

Between the year 2000 and now, America has made a lot of questionable decisions- two arguably unnecessary wars, TARP bailouts, allowing the rest of the world to think for five minutes that we might elect Herman Cain, enough said.

It probably says a lot about us as a country that the first real “take to the streets” moment in the decade that brought us the Patriot Act and the destruction of habeas corpus is that the galvanizing moment that brought Americans into the streets was making health care affordable for all families in America. While our first-world brethren enjoy access to health care regardless of whether they are jobless, homeless or just a guy working two 35-hour-a-week jobs at Walmart and the Harris Teeter to make ends meet and thusly rendered ineligible for coverage anywhere, the US had no such protections for its citizens- or indeed, citizens of other countries who happened to fall ill while visiting our great country.

While America sat by watching season after season of people doing karaoke and baking cakes, prisoners were held indefinitely in Cuba, homes were being taken out from under their neighbors, soldiers came home in boxes weekly for a war that quickly proved to be predicated on shaky ground. More than 100,000 Iraqi civilians died. So what got our dander up? That lower-middle class guy, over there, who might be able to get his treatable cancer treated. It was an outrage that got the red states- many of whom had the highest rates of unemployment and uninsured children in the country- up in literal arms at Town Hall meetings across the United States, carrying images of the president altered to look like Adolf Hitler.

Now the “big f*cking deal” health care reform amendment- which was finally passed in a watered down form enough to be palatable to the GOP that is (in the words of former Congressman Anthony Weiner) a “wholly-owned subsidiary of the insurance companies”- is headed to the highest court in the land to see if the changes heralded by the legislation hold up to scrutiny by the Supremes. And not surprisingly, there are calls for two of the Justices to recuse themselves amid cries of conflicts of interest. Clarence Thomas, a conservative judge best known for the Anita Hill scandal of the early 90s, and Obama-appointee Elena Kagan have been subject to calls for recusal from their respective opposing parties.

The controversy surrounding both Supreme Court judges and their supposed conflicts seem to typify a lot of the conflict between left and right overall. Firstly, the calls for Clarence Thomas to step away from the case have been resounding for a long time. The issues surrounding Clarence Thomas and more pointedly, his wife Ginni, have been swirling for some time and largely go back to her connections to an anti-health care reform group known as Liberty Central. Way back in February, political blogs and mainstream media were questioning Mrs. Thomas’ links to lobbying groups and money she made- income that went unreported for decades- that in some cases created a direct conflict impeding Clarence Thomas’ likelihood of making an impartial decision:

Kevin Zeese, attorney and spokesperson for, believes that Justice Thomas may have intentionally withheld the information in order to keep litigants from moving to disqualify him in cases where his wife’s employment could cause a conflict of interest or where she could benefit from a decision. “Justice Thomas cast a critical vote in the Citizens United case allowing conservative groups like the Heritage Foundation and Liberty Central to raise millions of dollars in secret funds to support and elect conservative politicians,” he said. “Had Justice Thomas disclosed that his wife worked for the Heritage Foundation, litigants may have had good cause to disqualify him from hearing that case. In fact, we are left to wonder if Justice Thomas knew that his wife was planning on leaving the Heritage Foundation to launch Liberty Central once Citizens United was decided. Clearly, she has benefitted personally from that decision.”

True to form, conservatives have responded that Democrats have pointed out the speck in Republican justices eyes to distract from the beam in their own eyes- namely Elena Kagan’s alleged connection to the case and what they say is a glaring conflict of interest. While Ginni Thomas- and by extension, her husband- indeed may have directly profited from efforts to quash the law, GOP supporters believe Kagan’s conflict of interest in the case is even more worrying. Ideological rather than connected to the almighty dollar, Kagan is being painted as a “cheerleader” for the legislation dubbed “ObamaCare” by its opponents. And while the Obama administration has said it “walled” Kagan off from the controversy in its early stages, George Washington University law professor Jonathan Turley says that the link between Kagan and the administration could still be construed as a reason for Kagan to recuse herself:

“The prior anticipation of this problem only magnifies the problem on one level. Kagan looks like a pocket justice — someone selected from the president’s inner circle to guarantee a vote on his most important legislative matter,” Turley said. “Yet, she appears intent on voting on the case given her prior participation in the case being accepted for review.”

Turley notes, however, that Kagan has in the past recused herself from some cases where a conflict of interest could be perceived as relevant, whereas Thomas has shown no such concern for the “appearance of self-interest.” Ultimately, Turley says, both justices should step down in his opinion, despite marked differences in the reasons behind their respective conflicts. Turley says:

“The appearance problems for both justices undermines the integrity of the court and the legitimacy of any final ruling in this historic case… They are responsible for those appearance problems and, in the interest of the court as an institution, should recuse themselves, in my view.”

What can be drawn from this debate, when examined from all sides, is that the controversy before the case even gets to the Supreme Court can only be seen as a harbinger of things to come.