It’s about time Obamacare came before the Supreme Court. Frankly, I’ve had it up to the teeth with different courts handing down different rulings; let’s take it to the Supremes and have them decide once and for all. But even this step isn’t going to be an easy one, with various interest groups insisting that liberal Justice Elena Kagan and/or conservative Justice Clarence Thomas recuse themselves, and other interest groups insisting there’s no need.
The basis for Kagan’s recusal would be the fact that she served as Solicitor General in the Obama administration, even though there is little sign that she was involved in putting together the health care law or wrote a judicial opinion on it. The basis for Thomas’s recusal has less to do with him than his wife, Virginia, president of the advocacy group Liberty Central, who has called for Obamacare’s repeal. His ruling, they say, might benefit her organization.
If both Kagan and Thomas recused themselves, it would have less of an ideological impact on the eventual ruling, as the two come from opposing viewpoints and would leave the bench with three liberals, three conservatives and one moderate. That’s is less of a concern than the people calling for their recusals, and the people opposing them. Of those quoted in the link, only Richard Garnett of Notre Dame and Arthur Hellman of the University of Pittsburgh, both of whom see no reason for either recusal, are framed as politically disinterested.
Meanwhile, the cited liberals target Thomas and defend Kagan, and the cited conservatives target Kagan and defend Thomas. Neither group appears to be aware that they each only have half an argument at work in all cases. They speak of the possibility of Kagan’s and Thomas’s conflicts of interest, but offer up little evidence that any such conflicts exist. As Solicitor General, Kagan had little legislative authority; as Virginia’s husband, Thomas had little business authority.
If they insist upon pursuing recusal on either part, it should be up to the congressional Judiciary Committees to back them up. They can take it upon themselves to look into how connected Kagan and Thomas have really been to proponents and opponents of Obamacare. Given the choice between a few partisan advocates and people with actual investigative power, and even the profs, I’d follow the word of the latter.
There’s nothing I dislike more than being interrupted or having my time wasted. If that’s all these calls for recusals amount to, don’t expect the aforementioned advocates to appear in this column again with any amount of flattery.