According to this ABC News piece, more than 70 Democratic Congressmen are calling for Justice Clarence Thomas to recuse himself if and when any of the legal challenges to the Patient Protection and Affordable Care Act reach the Supreme Court. (And it’s certainly looking to be a matter of “when” and not “if.”) The House Members argue that Thomas should not take part in oral arguments or any ruling the Court would make because of his wife’s involvement with a lobbying group that opposes the law.
“It’s up to the individual justice to determine whether he believes that, in fact or appearance, there’s sufficient concern about his impartiality to make recusal appropriate,” said Deborah L. Rhode, a legal ethics scholar and professor of law at Stanford University. “So he [Thomas] should be considering whether he believes he can act in a disinterested manner, but also the court’s credibility with the public, and will Americans, who may differ with him… believes he comes to the table with an unbiased view.”
Justice Thomas is not the only Supreme Court Justice being criticized for a potential conflict of interest. Republican Senator Orrin Hatch has called for Justice Elena Kagan to sit out the case should it reach the Court. He argues that Kagan, as former Solictor General for the Obama Administration, would have taken part in discussions about the health care law. Kagan has indeed recused herself from dozens of cases this term because of her previous role as the President’s chief advocate.
What do you think? Should either Justice recuse him or herself from the case? What are the strongest arguments on each side? Why is conflict of interest a particularly important issue for judges? How does this situation shine a light on the separation of powers?
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