Writing for My Own Amusement

Here is a link to a story in the NY Times this morning about a speech Chief Justice Roberts gave yesterday, in which he indirectly (without mentioning any names) addressed the controversy of whether Justices Thomas and/or Kagan should recuse themselves from the cases challenging the healthcare reform bill that are working their way up to the Supremes.

http://www.nytimes.com/2012/01/01/us/chief-justice-backs-peers-decision-to-hear-health-law-case.html#commentsContainer

Since Roberts mentioned no names, he obviously didn't directly equate the Thomas and Kagan situations, but the story itself doesn't seriously challenge that assumption. I think the two situations are radically different; one is real and the other manufactured.

Certain people on the right are asserting that Kagan, during her tenure as Solicitor General in the Obama administration, may have been involved in the construction of a legal defense for the healthcare bill. We have to, first, remember that the bill was written in Congress, and not in the Obama White House. If you consider the timeline of the torturous process of the bill itself, the initial challenges to it that were filed in the lower courts, and Kagan's nomination to the Supreme Court, there was very little time for her to have been involved in preparing a defense of the bill. But, since you (presumably) and I don't really know what goes on in the Solicitor General's office, I think the best argument is Kagan's own history on the court. She recused herself from more than two dozen cases in her first term, and has already recused herself from at least one this term, a case involving immigration law. She has demonstrated her integrity. Calls from some of the right wingers in Congress to subpoena her records from her time as Solicitor General are unprecedented and unwarranted. The right is trying to make her prove her "innocence."

The case why Thomas should recuse himself is, however, real. His wife Virginia is the founder and head of a conservative non-profit group called Liberty Central that is dedicated to, among other things, the roll back of what the right likes to call "Obamacare." Part of the Thomas household's income is derived from opposition to what Virginia and Liberty Central call the "leftist tyranny" of the Obama administration.

The NY Times story points out that "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." Period, paragraph, case closed.

I don't doubt that the attempt of the right to latch onto the Kagan issue and try to pretend there is something there, when there isn't, is a diversion from the real story of Clarence and Virginia Thomas. If they can equate the two situations, they have won.

Of course it is all speculation at this point, because there is still time for any Justice to recuse himself/herself and maybe there will be a surprise.