Hate to be blunt and break the news – Rev. Al Sharpton and the chorus of folks calling for Justices Clarence Thomas and Anonin Scalia to recuse themselves from ruling on the Affordable Care Act need to hang it up. None of the justices have plans to sit out the “Obamacare” review, perhaps the most influential court decision in decades.
Scalia and Thomas are frequent guests at Federalist Society events which will be among several parties arguing for the reversal of the law. And Thomas’ wife Virgina Lamp has worked as a lobbyist for Liberty Central, a conservative political advocacy group pushes for smaller government and the reverse the Affordable Care Act. She earns $150,000 in that capacity and a little under $15,000 from another anti-health care lobbying firm, according to disclosure forms.
“Throughout history, judges in various courts have often times recused themselves when there was an apparent conflict of interest in a case,” Sharpton wrote in a sharply worded release. “You don’t need a juris doctorate to realize that Thomas and Scalia should do the same now.”
On the other end of the politcal spectrum, Carrie Severino, a former Thomas clerk and chief counsel of the conservative group Judicial Crisis Network called for the recusal of Justice Elena Kagan citing her previous job as Solicitor General of the Obama Administration. Severino said Kagan’s office was “responsible for formulating the administration’s defense” of the health care law.
During her confirmation hearings, Kagan indicated that she never commented on the merits of the health care law and only sat in on one meeting where the case was missing. Even then, there was nothing substantive discussed. Judicial Watch released emails this week it obtained from the Justice Department showing Kagan on the distribution list and was aware of the case and talk about her recusal. In a March 21, 2010-dated email, Kagan wrote to then-colleague Larry Tribe as the House of Representatives passed the Affordable Care Act: “I hear they have the votes Larry!! Simply amazing.”
Justices have the priority to decide if they will recuse themselves from cases. And there’s no indication from the Court’s Order that any justices are opting to sit out.
Two sets of ethic rules apply here: 1. a federal statute requiring federal judges to “disqualify” him or herself in any proceeding in which his impartiality might reasonably be questioned; and 2) a similar standard adopted by the Judicial Conference called the Judicial Code of Conduct.
But that Code of Conduct is usually only applicable to lower court judges, although Supreme Court justices often follow the guidelines. Some believe the Code should apply to the Supreme Court as well.
However, both Justice Anthony Kennedy and Stephen Breyer have gone on record in the past saying they didn’t believe the rules that apply to appellate courts ought to apply to the Supremes.
With that, those protesting and calling for recusal may be wasting their time and energy. Too much is at stake and each Justice wants his or her say. The absence of one or more could disrupt the ultimate decision.
Nice try, folks. Close … but, no cigar.