Wednesday, February 9

Clarence Thomas should recuse himself from Affordable Care Act Decisions

That's what 74 lawmakers apparently think...

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.

Uh oh, I think that's going to upset the apple cart on Tea Bagger Hill.

It's not like Repubs can claim that Thomas is being "picked on and singled out" because he happens to be a certainty to vote against the constitutionality of the mandate because Senator Orrin Hatch has already called for Justice Kagan to recuse herself from the Patients Affordability Act deliberations for far flimsier reasons.

WASHINGTON – Republican Sen. Orrin Hatch, an opponent of the recently enacted health care overhaul, says Justice Elena Kagan should not take part in the widely expected Supreme Court consideration of the new law.


Hatch said he is sure that Kagan participated in discussions about the law and challenges to it while she served in the Justice Department as Obama's top Supreme Court lawyer. Hatch told Fox News that he believes Kagan "should recuse herself," although he noted the justice alone will make that determination.

Oh, "He is Sure" is he? Never mind the fact that as Solicitor General she wouldn't have had anything to do with this particular issue until it appeared it might actually go before the Supreme Court - which hasn't happened yet. But he figures that it must have been water-cooler office talk??

There are several cases from which Kagan actually will have to recuse herself because she was involved in forming the administrations legal rationale for them, and hence would be judging her own arguments. In fact she has already volunteered to recuse herself from over 2 dozen cases.

Kagan, 50, has recused herself from 25 of the 51 cases the court has accepted so far this term, all as a result of her 14-month tenure as solicitor general, the government's chief legal representative in the Supreme Court and the nation's lower appellate courts.

This simply isn't one of those cases.

Kagan addressed her participation during her confirmation hearing. She said then that she "attended at least one meeting where the existence of the litigation was briefly mentioned, but none where any substantive discussion of the litigation occurred." Kagan left the administration in August, about five months after the health care overhaul became law.

So basically Hatch is a) Making Shit UP that goes directly against Kagan's sworn testimony b) Implying she's a liar and c) Implying she's a Perjurer.


But in the case of Thomas it's not really a matter of opinion that his family, through his wife Ginny's activism for Right-Wing causes, would directly benefit from his decision. She already has in the case of Citizen's United, and she is currently making money lobbying against the Health Care Bill via her firm Liberty Central.

RICHMOND, Va. — As one of the keynote speakers here Friday at a state convention billed as the largest Tea Party event ever, Virginia Thomas gave the throng of more than 2,000 activists a full-throated call to arms for conservative principles.

Mrs. Thomas is the founder and head of a new nonprofit group, Liberty Central, dedicated to opposing what she characterizes as the leftist “tyranny” of President Obama and Democrats in Congress and to “protecting the core founding principles” of the nation.


A federal law requires justices to recuse themselves in a number of circumstances where real or perceived conflicts of interest could arise, including in cases where their spouses could have a financial interest. But the decision to step aside is up to each justice; there is no appeal from the nation’s highest court.

It’s shocking that you would have a Supreme Court justice sitting on a case that might implicate in a very fundamental way the interests of someone who might have contributed to his wife’s organization,” said Deborah L. Rhode, a law professor and director of the Stanford University Center on the Legal Profession.

As many of us know Thomas failed to document the earnings from his wife's activism for over a dozen years.

Supreme Court Justice Clarence Thomas has amended 13 years’ worth of disclosure reports to include details of wife Virginia Thomas’s sources of income, documents released on Monday show.

The documents indicate that Thomas’s wife, who goes by Ginni, had worked for Hillsdale College in Michigan, the Heritage Foundation and the Republican leadership in the House of Representatives, among other entities.

Like all federal judges, Thomas must file annual disclosure reports on his personal finances, but he had omitted details of his wife’s earnings in what he wrote was a “misunderstanding of the filing instructions.” He also had checked a box marking no spousal income.

He also didn't disclose any information about her work with Liberty Central until recently.

Here she is on Fox News with Neal Cavuto.

Most recently Ginni has formed Liberty Consulting, a firm that couldn't have existed without Citizen's United.

Ginni Thomas’ new career advising clients on how to donate money to political causes is striking in light of the fact that this career path was much more difficult to break into just one year ago. In Citizens United v. FEC, Ginni’s husband Clarence cast the key fifth vote enabling corporations to spend unlimited money influencing U.S. elections. As a result of this vote, outside groups spent nearly $300 million influencing the 2010 elections — much of which would have been illegal before Justice Thomas greenlighted this spending.

Now, Ginni Thomas appears to have found a way to earn money off her husband’s actions as a justice. Clarence Thomas released countless amounts of corporate spending on U.S. elections, and Ginni Thomas can get rich advising those corporate clients on how to direct that spending

The point is that this isn't just a matter of opinion (or fantasy) as Hatch's criticism of Kagan, this is a matter of law.

(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

(b) He shall also disqualify himself in the following circumstances: …

(5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person: . . .

(iii) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;

Even beyond Hatch, Republicans have used this very same arguement themselves in the past when they called for the recusal of one judge from a decision on California Proposition 8, because his wife had been part of an anti-Prop 8 advocacy group.

It’s worth noting that conservatives have already interpreted this ethics law in a way that requires Justice Thomas to recuse himself from the health care litigation. After progressive Judge Stephen Reinhardt was assigned to the appellate panel that was to hear a challenge to anti-gay Proposition 8, supporters of the anti-gay law called for Reinhardt to recuse because his wife’s organization advocates against Prop 8.

Not that anyone seriously thinks Thomas will do the right thing and recuse himself in case, but it's going to interesting watching Repubs who called for Kagan and Reinhardt to recuse themselves wriggle out of the hypocrisy noose on this one.

Here's a blast from the past on Ginni by former CNN Host Rick Sanchez.


Update: Added more videos, and links to Ginni Thomas and her current work with Liberty Consulting, as well as link to WaPo article that documents that Elena Kagan has recused herself in nearly half the cases the Supreme Court will hear this session.

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