Should Clarence Thomas and/or Elena Kagan recuse themselves from the upcoming "ObamaCare" decision

Now that the Supreme Court has acknowledged that they will indeed hear the case to determine the constitutionality of The Affordable Care Act or as some would call it, "ObamaCare," I was wondering if anyone other than myself felt like justice Clarence Thomas should recuse himself from hearing this case.

This subject has been in the MSM for a few days now and I've heard some really valid points being made regarding what I see as irrefutable evidence of a financial conflict of interest with respect to Justice Thomas because of the fact that his wife, Virginia Thomas, has been paid over $680,000 from the Heritage Foundation where she was an advocate for the repeal of "ObamaCare." Not to mention the fact that he, Justice Thomas, failed to declare that income on his financial disclosure statement.

www.npr.org...

This is a good time to recall that seventy-four members of Congress have signed a letter asking Justice Clarence Thomas to recuse himself from any ruling on the Affordable Care Act because of his wife's work as a conservative activist and lobbyist, where she specifically agitated for the repeal of "Obamacare."

www.newyorker.com...

Ginni Thomas’s particular target was the health-care-reform law, which was, in her view, clearly unconstitutional. In Atlanta, in April: “I have been writing my congressman, and going to his office. I waited for the August health-care hearings and were there any town-hall hearings? No.” On Fox News, in May: “The audacity of power-grabbing that I’m seeing right now in cap-and-trade, health care, the stimulus plan, it’s corrupt. It’s a big power grab. It’s picking winners and losers from Washington; it’s abhorrent to our national principles.” At the Steamboat Institute, in Colorado, in August: “We need outsiders to help a constitutional audit to help set up a system where Congress can reconsider different functions, and programs, and agencies. . . . I think we need a big spending reduction and no new taxes. . . . I think we need to repeal Obamacare.”

Anyway, IMO the question of whether or not Justice Thomas should recuse himself is a no-brainer. Without a doubt, he should NOT be any part of the hearing or ruling on this case.

Because of the fact that it seems more than probable that Justice Thomas will indeed be forced to recuse himself from the case, it now seems as though the right wing conservative movement is desperate to find a reason to remove one of the more liberal Justices from the decision as well. You know to, "even up the court," as one Fox News correspondent so elegantly put it. It now appears that they have set their sights on Justice Elena Kagan and apparently they, Fox News, is even willing to fabricate new articles and sections of the U.S. Constitution in order to make their case.

www.newscorpse.com...

They are using a different Constitution than the rest of the American people. In a segment discussing whether Supreme Court Justice Elena Kagan should recuse herself from the health care case the Court recently agreed to hear, Fox’s national correspondent, Steve Centanni, had this to say:

“If she were closely involved with the health care bill, she would legally be required to recuse herself from the case. According to the Constitution a justice must recuse even if he or she quote, ‘…expressed an opinion concerning the merits of the particular case in controversy.’ That’s from Article 28 of the Constitution.”

Centanni’s remarks were accompanied by an on-screen graphic that displayed the quote and included the source: “U.S. Constitution, Article 28, Sec. 144.” Well, as Media Matters points out, there are…

“Three glaring problems with this argument: The Constitution has no Article 28, has no Section 144, and does not contain the language quoted.”

Apparently, Centanni’s quote actually comes from a congressional statute: U.S. Code, Title 28, Section 455, Sub-section 3. But legal experts have debunked any interpretation of that that would require Kagan’s recusal.

However, the same statute appears to require the recusal of Justice Clarance Thomas. Sub-section 4 states that a justice must disqualify himself if…

“(4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;”

Here are a couple more articles on the subject of Justice Kagan's possible recusal;

hypervocal.com...
mediamatters.org...

Pretty pathetic if you ask me. It's no wonder that everything Obama does is unconstitutional in their eyes, apparently they have a different constitution than the rest of us. But then it goes well with the Fox News motto of; "No Time For Facts."

Personally, I see no reason to call for the recusal of Justice Kagan. How do the rest of you here on ATS feel about this question? Should he or shouldn't he and should she or shouldn't she?

Justice Thomas seems to have an ongoing problem with ethics. I have seen several online petitions going around demanding investigations and actions.

Simple question:

Where does it say in the constitution that the Government has the power to force its citizens to buy health insurance?


Please provide answer, if you can.

I think you have it backwards. Kagan needs to recuse herself.

The definition of Recuse is "To disqualify or seek to disqualify from participation in a decision on grounds such as prejudice or personal involvement."

Thomas' wife is a paid lobbyist for organizations that want to repeal the Affordable Care Act. That absolutely is reason he should recuse himself.

The argument that Elena Kagan should recuse herself is that she was US Solicitor General at the time the act was passed. I don't why this would be reason for her to have to recuse herself. Actually the argument for her removal come from a right-wing action group "Judicial Crisis Network" and former clerk to Clarence Thomas.

Here is the text of the letter sent to Thomas regarding recusal:

Dear Justice Thomas:

As an Associate Justice, you are entrusted with the responsibility to exercise the highest degree of discretion and impartiality when deciding a case. As Members of Congress, we were surprised by recent revelations of your financial ties to leading organizations dedicated to lobbying against the Patient Protection and Affordable Care Act. We write today to respectfully ask that you maintain the integrity of this court and recuse yourself from any deliberations on the constitutionality of this act.

The appearance of a conflict of interest merits recusal under federal law. From what we have already seen, the line between your impartiality and you and your wife's financial stake in the overturn of healthcare reform is blurred. Your spouse is advertising herself as a lobbyist who has "experience and connections" and appeals to clients who want a particular decision - they want to overturn health care reform. Moreover, your failure to disclose Ginny Thomas's receipt of $686,589 from the Heritage Foundation, a prominent opponent of healthcare reform, between 2003 and 2007 has raised great concern.

This is not the first case where your impartiality was in question. As Common Cause points out, you "participated in secretive political strategy sessions, perhaps while the case was pending, with corporate leaders whose political aims were advanced by the [5-4] decision" on the Citizens United case. Your spouse also received an undisclosed salary paid for by undisclosed donors as CEO of Liberty Central, a 501(c)(4) organization that stood to benefit from the decision and played an active role in the 2010 elections.

Given these facts, there is a strong conflict between the Thomas household's financial gain through your spouse's activities and your role as an Associate Justice of the United States Supreme Court. We urge you to recuse yourself from this case. If the US Supreme Court's decision is to be viewed as legitimate by the American people, this is the only correct path.

This exemplifies the problem we have in government, most (if not all) of "our" representatives have sold their opinions/rulings to the highest bidder. They are TAINTED.

Originally posted by kellynap43
Simple question:

Where does it say in the constitution that the Government has the power to force its citizens to buy health insurance?

Please provide answer, if you can.

I'm not saying that it does. I didn't write this thread to discuss the merits of the ACA, but rather to discuss whether or not certain Justices had a conflict of interest with respect to this case.

Personally, I don't believe that anyone should be forced to purchase health insurance from a "Private" health insurance provider. On the other hand, I'm fully in favor of "Medicare For All" and/or a "Public Option," both of which are "not-for-profit" providers. I truly believe that we would have had one of these options had it not been for the obstructionist policies of the T.P./GOP. Anyway, that's for the court to decide.

reply to post by Flatfish


Or in other words, use peoples hard earned money for people who do not earn money.

reply to post by Blackmarketeer


I couldn't agree with you more. Thanks for posting the actual letter sent to Justice Thomas, if I were asked, I would sign it in a heartbeat. Personally, I don't believe there could be a better example of "conflict of interest" than that surrounding Justice Thomas and the activities of his wife Virginia.

If you have an issue with Clarence Thomas then you should also be signing a petition for Nancy Pelosi to resign. Her and her husband have made millions based on govt decisions that profited her husbands businesses. But no, you only cherry pick certain cases that fit your beliefs.

Originally posted by kellynap43
reply to post by Flatfish

 

Or in other words, use peoples hard earned money for people who do not earn money.

Exactly who do you think is paying those medical bills now? Every time someone without insurance goes to their county hospital for care, the taxpayers of that county or state are footing the bill. Problem is we're not getting the biggest bang for our buck because we're always paying for the most expensive health care possible which is emergency room care.

It is precisely because of this system that America spends more money per capita for health care than most other industrialized nations with some of the least effective results.

We're already paying the bill, so why not get the most for our money?

Here's the full text of that stipulation:

(3) Where he has served in governmental employment and in such
capacity participated as counsel, adviser or material witness
concerning the proceeding or expressed an opinion concerning the
merits of the particular case in controversy;

(1) "proceeding" includes pretrial, trial, appellate review, or
other stages of litigation;

As far as I can see, unless Kagan served as counsel in a legal case about Obamacare- and IN THAT CAPACITY, expressed an opinion, then I'm not sure why people think she should recuse herself. That phrase doesn't seem to be intended for any Justice who has ever expressed an opinion... It would apply to someone who had expressed a legal or official opinion while serving as counsel, adviser or material witness concerning a proceeding on the matter.

28 U>S>C 455

I could be mistaken, but that's how I read it.

reply to post by jjkenobi


Nancy Pelosi is not a judge, justice or magistrate.

Originally posted by jjkenobi
If you have an issue with Clarence Thomas then you should also be signing a petition for Nancy Pelosi to resign. Her and her husband have made millions based on govt decisions that profited her husbands businesses. But no, you only cherry pick certain cases that fit your beliefs.

I'd say you're a little off topic here. If you want to start a thread about Nancy Pelosi and whether or not she should resign, no one is stopping you. This thread happens to be about the upcoming supreme court decision regarding ObamaCare and whether or not some of the Justices may have existing conflicts of interest.

I'm not sure just how I feel about Nancy Pelosi but I will be more than happy to participate in any discussion you wish to have concerning her in a thread designed for that purpose, but not here.

Yes they both should but will they? No they won't,

The Care Act should have never been created .

reply to post by jjkenobi

If you have an issue with Clarence Thomas then you should also be signing a petition for Nancy Pelosi to resign. Her and her husband have made millions based on govt decisions that profited her husbands businesses. But no, you only cherry pick certain cases that fit your beliefs.

As did Eric Cantor, as did John Boehner, as did just about every political figure in Congress.

Kagan was solicitor general, she never passed any ruling on the Health Care act. And this:
Oops: National Review Online Accidentally Makes The Case For Kagan To Rule On Health Care Law

Thomas' should be recused, he is personally tied to lobbying efforts to repeal it, his wife was paid $150,000 in lobbying fees to repeal it (Justice Clarence Thomas’s wife received $150,000 from anti-health care reform group), even wined and dined with the HCA challengers (Scalia and Thomas dine with healthcare law challengers as court takes case) BOTH Scalia and Thomas should be recused on those grounds alone.

Kagan and Thomas are as different as night and day. One was doing her job, and the other is as corrupt as they come.

Originally posted by Benevolent Heretic
Here's the full text of that stipulation:

(3) Where he has served in governmental employment and in such
capacity participated as counsel, adviser or material witness
concerning the proceeding or expressed an opinion concerning the
merits of the particular case in controversy;

(1) "proceeding" includes pretrial, trial, appellate review, or
other stages of litigation;

As far as I can see, unless Kagan served as counsel in a legal case about Obamacare- and IN THAT CAPACITY, expressed an opinion, then I'm not sure why people think she should recuse herself. That phrase doesn't seem to be intended for any Justice who has ever expressed an opinion... It would apply to someone who had expressed a legal or official opinion while serving as counsel, adviser or material witness concerning a proceeding on the matter.

28 U>S>C 455

I could be mistaken, but that's how I read it.

I totally agree and furthermore, I believe that to be the opinion of most legal experts with respect to her as well. I believe the push to have her removed from the case is a desperate right-winged attempt to eliminate a liberal Justice thereby negating the effects of losing Justice Thomas in the decision.

As far as Thomas goes, I don't think he should walk away. I know that's a strange position but I was reading an article in the Nation, a pretty progressive magazine with a lot of bad things to say about Justice Thomas:

Clarence Thomas should probably recuse himself, but it’s important to note that Ginni’s activities are much more likely a symptom of her husband’s deep bias and antipathy towards progressive causes, not the cause of them. In an excellent (and very long) profile of Clarence Thomas in The New Yorker, Jeffrey Toobin explained in great detail what motivates the extremely conservative justice:

It is likely to be the most important case for the Justices since Bush v. Gore, and it will certainly be the clearest test yet of Thomas’s ascendancy at the Court. Thomas’s entire career as a judge has been building toward the moment when he would be able to declare that law unconstitutional. It would be not only a victory for his approach to the Constitution but also, it seems, a defeat for the enemies who have pursued him for so long: liberals, law professors, journalists—the group that Thomas refers to collectively as “the élites.” Thomas’s triumph over the health-care law and its supporters is by no means assured, but it is now tantalizingly within reach.

The article spells out pretty clearly that his wife isn't influencing him, he will rule the way he wants to because his whole career has consistently headed in one direction, and like him or not, his wife's activities have no effect on him in this matter.

(Oh, by the way, she hasn't worked for the Heritage Foundation for a year, and the Foundation deals with such a wide variety of issues that he could be asked to recuse himself from every case in the future. I know that would cheer some people, but that's a ridiculous result.)

reply to post by charles1952


I'm not sure as to whether or not the question is; "Did his wife influence his decision?" I believe that the statute primarily focuses on financial interest, of which there is plenty of evidence to validate that it is indeed the case. His wife has been paid over $680,000.00 to advocate for this very issue which brings the following statute into play.

www.newscorpse.com...

However, the same statute appears to require the recusal of Justice Clarance Thomas. Sub-section 4 states that a justice must disqualify himself if…

“(4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;”

I really think that as far as Justice Thomas is concerned, it's pretty obvious that he must recuse himself from this issue.

If one should then they both should, as they both have equal ties to it. It's going to be a 5-4 decision, either for or against. There are some swing votes though. Roberts could pull out something like he did when Roe v. Wade was up for review and say that Rickard v. Filburn is precedent enough to say the mandate is constitutional.

Definitely for:

Sotomayor
Kagan

Probably for:

Ginsberg

Definitely against:

Thomas
Scalia

Probably against:

Alito

Swing votes:

Roberts
Breyer
Kennedy

/TOA

reply to post by The Old American


Kagan doesn't have a personal stake in the decision. Even a conservative political organization made that admission.

Judge Thomas is married to a lobbyist trying to repeal the Affordable Care Act. Even if you don't consider his (and Scalia's) being feted by health care organization's also trying to repeal the act a reason to recuse, his wife's lobbying position mandates he recuse himself. That is a personal relationship as defined by the term 'recuse'