Court announcement raises recusal questions for Kagan, Thomas
The Supreme Court’s announcement Monday that it will hear challenges to President Obama’s health care law have put the spotlight on Justice Elena Kagan, who worked in the administration while the law was being written and, conservatives argue, helped craft its legal defense.
“Before the Supreme Court case is heard we need to know if Justice Elena Kagan helped the Obama Administration prepare its defense for Obamacare when she was solicitor general. The Justice Department must answer serious questions about whether Justice Kagan has an inherent conflict of interest which would demand that she recuse herself from the Obamacare case,” said Rep. John Fleming, Louisiana Republican.
At the same time, liberal groups and Democrats in Congress have been pushing for months for Justice Clarence Thomas to recuse himself, citing his wife’s work with a group that opposes the health care law as an indication he cannot rule impartially.
But legal experts doubted it would happen, and James Sample, a law professor at Hofstra University School of Law who studies recusal issues, said the outside groups’ calls are misplaced.
“I am generally one of the most pro-recusal scholars you can find, and yet I think in this instance those who are trying to argue for the recusal of Justice Kagan and Justice Thomas alike are opportunists who are trying to use a mechanism that just doesn’t fit,” he said.
The standard for recusal is whether a judge or justice’s impartiality can reasonably be questioned.