# Both Thomas and Kagan face pressure to recuse **URL:** \ **Category:** Great Debates\ **Created:** [November 16, 2011, 12:32am UTC](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077 "2011-11-16T00:32:09Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Zakalwe](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/zakalwe/32/270_2.png) [@Zakalwe](https://boards.straightdope.com/u/Zakalwe)\ **Post date:** [November 16, 2011, 12:32am UTC](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077/1 "2011-11-16T00:32:09Z")
So, according to numerous stories out today (first Google link picked): [http://www.theatlanticwire.com/politics/2011/11/recusal-wars-heat-supreme-courts-health-care-case/45017/](http://www.theatlanticwire.com/politics/2011/11/recusal-wars-heat-supreme-courts-health-care-case/45017/) Both Kagan and Thomas have been requested to recuse themselves from the upcoming health care case. Okay, my opinion (in two parts no less): Objectively, they both _should_ recuse. Kagan was a participant in the Administration that championed the law _at the time it was being championed_. Thomas has personally been the beneficiary of the organized opposition to the law. Politically, they both should recuse. The effect is, for all practical purposes, a wash (so the decision is 4-3 instead of 5-4) and it would go a long way towards restoring some sense that the Court has some standards. What say you? ---
**Author:** ![gonzomax](https://avatars.discourse-cdn.com/v4/letter/g/e8c25b/32.png) [@gonzomax](https://boards.straightdope.com/u/gonzomax)\ **Post date:** [November 16, 2011, 1:18am UTC](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077/2 "2011-11-16T01:18:13Z")
Thomas and Scalia also went to parties funded by the health companies and I believe spoke at them. Why not them too? Although Scalia has never refused to judge a case, no matter how close has has been tied to it. > **[The Supreme Court Cannot Have Its Own Conflict of Interest -- Justices Thomas...](https://www.huffpost.com/entry/supreme-court-health-care_b_1094867)** > > When Judge Clarence Thomas' wife is directly connected to an anti-health care lobbying group, and both he and Judge Antonin Scalia attend conservative fundraisers, they have no option but to recuse themselves. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [November 16, 2011, 1:19am UTC](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077/3 "2011-11-16T01:19:29Z")
Among the other precedents set by the landmark case of Marbury v. Madison was the principle that a Supreme Court Justice can decide for himself if there is a conflict of interest. Chief Justice John Marshall wrote the decision in that case despite the fact that he was almost a co-defendant. ---
**Author:** ![Zakalwe](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/zakalwe/32/270_2.png) [@Zakalwe](https://boards.straightdope.com/u/Zakalwe)\ **Post date:** [November 16, 2011, 1:39am UTC](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077/4 "2011-11-16T01:39:47Z")
Thanks for the early responses. I should note that I do _not_ want this thread to be about arguing the merits of the suit. This is not about the actual law under consideration. Further, I’d prefer that it not be about the actual liklihood of either actually recusing themselves. As for Scalia, honestly, I’m willing to give him a pass on that unless he actually spoke specifically about the merits of the case currently before the Court. Judges (even SC Justices) are human and thus going to have numerous ties to just about any case before the Court. Thomas gets special consideration since his wife works, more or less full time, for an interested party. ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [November 16, 2011, 2:00am UTC](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077/5 "2011-11-16T02:00:49Z")
> [@gonzomax](#): > > Although Scalia has never refused to judge a case, no matter how close has has been tied to it.] Scalia recused himself in Elk Grove School District v Newdow (the pledge of allegiance case). ---
**Author:** ![magellan01](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@magellan01](https://boards.straightdope.com/u/magellan01)\ **Post date:** [November 16, 2011, 5:26am UTC](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077/6 "2011-11-16T05:26:29Z")
Judges at that level are going to come into contact with interested parties. Just because Ginsburg may have talked to an organization or attended an event doesn’t mean she must recuse herself. Thomas’s and Scalia’s attending an lawyerly event gets a pass, just as if a liberal justice attended a an even sponsored by the ACLU. The fact is that there are both liberal and conservative stances regarding the law. I’m sure that all the justices are kinda aware of this. Kagan, on the other hand is being pushed to recuse herself because she apparently, has already made up her decision on how wonderful the healthcare plan’s passage was. The only reason that Thomas may be urged to recusal is his wife’s role. But I give him a pass here, unless it is routine for justices to recuse themselves based on their spouse’s activity. But I doubt that’s the case. It assumes that a husband and wife can’t disagree on issues of law/politics. Hell, just look at [these two.](http://www.architecturaldigest.com/homes/features/2008/01/carville_article_012008) Who, by the way I like a lot. Both of them. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [November 16, 2011, 6:10am UTC](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077/7 "2011-11-16T06:10:10Z")
> [@magellan01](#): > > Kagan, on the other hand is being pushed to recuse herself because she apparently, has already made up her decision on how wonderful the healthcare plan’s passage was. What do you base this on? And do you have any reason to feel she’s any different than the other eight justices? Judicial nominees may play coy at their confirmation hearings but they are supposed to be legal professionals. It would be irresponsible of them to not be aware of current American law and to not have opinions on the subject. Once they’re on the court, Justices are going to follow legal news and they’re going to be aware of what significant cases on going on. They’re going to know the issues before they choose which cases they want to review. So let’s face facts. Ninety percent of the time, Supreme Court Justices have probably decided how they’re going to vote before the hearing begins. It’s not like Perry Mason is going to call a surprise witness to appear before the Supreme Court. ---
**Author:** ![Smapti](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/smapti/32/17938_2.png) [@Smapti](https://boards.straightdope.com/u/Smapti)\ **Post date:** [November 16, 2011, 6:13am UTC](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077/8 "2011-11-16T06:13:09Z")
I see no reason for either justice to recuse themselves from this case. The “urging” against Kagan is a pretty hollow attempt by ring-wing media groups to tip the balance of the court in their favor. Merely having worked for the Obama administration does not constitute a conflict of interest, nor does the idea that she was pleased by the bill’s passage. If justices are now required to not have personal opinions on ANY legislation that may eventually end up before them, then all nine would have to recuse themselves from every case. I’m not too familiar with the allegations about what Thomas’ wife did, but I don’t think Thomas can be held responsible for his wife’s behavior. ---
**Author:** ![Bryan\_Ekers](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bryan_ekers/32/183_2.png) [@Bryan\_Ekers](https://boards.straightdope.com/u/Bryan_Ekers)\ **Post date:** [November 16, 2011, 6:15am UTC](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077/9 "2011-11-16T06:15:24Z")
> [@Smapti](#): > > I’m not too familiar with the allegations about what Thomas’ wife did, but I don’t think Thomas can be held responsible for his wife’s behavior. Well, if she profited, increasing the marital assets to his benefit… ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [November 16, 2011, 12:24pm UTC](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077/10 "2011-11-16T12:24:22Z")
> [@Smapti](#): > > I see no reason for either justice to recuse themselves from this case. > > The “urging” against Kagan is a pretty hollow attempt by ring-wing media groups to tip the balance of the court in their favor. Merely having worked for the Obama administration does not constitute a conflict of interest, nor does the idea that she was pleased by the bill’s passage. Do you think that she would be pleased by the passage of an unconstitutional bill? I had never heard of that email before, but IMHO it’s pretty damning as far as being able to fairly judge the bill. It is OBVIOUS that she has expressed strong approval of it and has already made her mind up about it. At least to me this is a textbook reason for recusal. Has Thomas made up his mind? Sure, he has, but the appearance of impropriety is not there unless he should bitch slap his wife and make her stay home and bake cookies. A spouse is allowed to have his or her own interests. It would be impossible for a high profile person to avoid an association with someone who aligned themselves with a political cause. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [November 16, 2011, 1:06pm UTC](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077/11 "2011-11-16T13:06:59Z")
Not to hijack, but does anyone else think this will be a rout? After the Raich decision, it’s pretty clear that Congress has wide authority to impose a national program. I predict a 7-2 upholding the law with Thomas and Alito dissenting. I personally disagree, but Scalia seems to have bought into the Wickard/Raich line of thinking. ---
**Author:** ![RTFirefly](https://avatars.discourse-cdn.com/v4/letter/r/c77e96/32.png) [@RTFirefly](https://boards.straightdope.com/u/RTFirefly)\ **Post date:** [November 16, 2011, 1:30pm UTC](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077/12 "2011-11-16T13:30:36Z")
> [@jtgain](#): > > Has Thomas made up his mind? Sure, he has, but the appearance of impropriety is not there unless he should bitch slap his wife and make her stay home and bake cookies. [How’s this?](http://www.latimes.com/news/politics/la-pn-scalia-thomas-20111114,0,7978224.story) > [@](#): > > The day the Supreme Court gathered behind closed doors to consider the politically divisive question of whether it would hear a challenge to President Obama’s healthcare law, two of its justices, Antonin Scalia and Clarence Thomas, were feted at a dinner sponsored by the law firm that will argue the case before the high court. > > … > > The lawyer who will stand before the court and argue that the law should be thrown out is likely to be Paul Clement, who served as U.S. solicitor general during the George W. Bush administration. > > Clement’s law firm, Bancroft PLLC, was one of almost two dozen firms that helped sponsor the annual dinner of the Federalist Society, a longstanding group dedicated to advocating conservative legal principles. Another firm that sponsored the dinner, Jones Day, represents one of the trade associations that challenged the law, the National Federation of Independent Business. > > Another sponsor was pharmaceutical giant Pfizer Inc, which has an enormous financial stake in the outcome of the litigation. The dinner was held at a Washington hotel hours after the court’s conference over the case. In attendance was, among others, Mitch McConnell, the Senate’s top Republican and an avowed opponent of the healthcare law. > > The featured guests at the dinner? Scalia and Thomas. The story goes on to point out that if they were on a lower court, they’d likely be judged in violation of the ethics rules that apply to the lower Federal courts. But the Supreme Court is exempt from these rules. ---
**Author:** ![RTFirefly](https://avatars.discourse-cdn.com/v4/letter/r/c77e96/32.png) [@RTFirefly](https://boards.straightdope.com/u/RTFirefly)\ **Post date:** [November 16, 2011, 1:37pm UTC](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077/13 "2011-11-16T13:37:28Z")
It’s also worth noting that Scalia and Thomas [have been past attendees](http://www.nytimes.com/2010/10/20/us/politics/20koch.html?ref=us) at the Koch Brothers’ political strategy sessions. Of course the mind of a Supreme Court Justice isn’t going to be a blank slate, and they’re going to see the world from a particular point of view that will inform their votes on key cases. But being a participant in a movement with clear political goals is beyond inappropriate for a Supreme Court Justice, IMHO. In a more reasonable world, there’d be talk of impeaching them. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 16, 2011, 2:31pm UTC](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077/14 "2011-11-16T14:31:56Z")
Can someone propose a rule that would require Thomas to recuse himself, but not require Judge Reinhardt to have recused himself in the California same-sex marriage appeal when his wife was the Executive Director of the ACLU, which organization was in strongly in favor of retaining marriage rights for same-sex couples and had that as one of its published and funded goals? Reinhardt said, in his opinion refusing to recuse himself: > [@](#): > > My wife’s views, public or private, as to any issues that may come before this court, constitutional or otherwise, are of no consequence. She is a strong, independent woman who has long fought for the principle, among others, that women should be evaluated on their own merits and not judged in any way by the deeds or position in life of their husbands (and vice versa). I share that view and, in my opinion, it reflects the status of the law generally, as well as the law of recusal, regardless of whether the spouse or the judge is the male or the female. > > My position is the same in the specific case of a spouse whose views are expressed in the capacity of an officer, director, or manager of a public interest or advocacy organization that takes positions or supports legislation or litigation or other actions of local, state, or national importance. Proponents’ contention that I should recuse myself due to my wife’s opinions is based upon an outmoded conception of the relationship between spouses. When I joined this court in 1980 (well before my wife and I were married), the ethics rules promulgated by the Judicial Conference stated that judges should ensure that their wives not participate in politics. I wrote the ethics committee and suggested that this advice did not reflect the realities of modern marriage–that even if it were desirable for judges to control their wives, I did not know many judges who could actually do so (I further suggested that the Committee would do better to say “spouses” than “wives,” as by then we had as members of our court Judge Mary Schroeder, Judge Betty Fletcher, and Judge Dorothy Nelson). The committee thanked me for my letter and sometime later changed the rule. That time has passed, and rightly so. In 2011, my wife and I share many fundamental interests by virtue of our marriage, but her views regarding issues of public significance are her own, and cannot be imputed to me, no matter how prominently she expresses them. It is her view, and I agree, that she has the right to perform her professional duties without regard to whatever my views may be, and that I should do the same without regard to hers. Because my wife is an independent woman, I cannot accept Proponents’ position that my impartiality might reasonably be questioned under § 455(a) because of her opinions or the views of the organization she heads. Was Reinhardt wrong? ---
**Author:** ![CaveMike](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/cavemike/32/16379_2.png) [@CaveMike](https://boards.straightdope.com/u/CaveMike)\ **Post date:** [November 16, 2011, 3:13pm UTC](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077/15 "2011-11-16T15:13:57Z")
> [@Bricker](#): > > Can someone propose a rule that would require Thomas to recuse himself, but not require Judge Reinhardt to have recused himself in the California same-sex marriage appeal when his wife was the Executive Director of the ACLU, which organization was in strongly in favor of retaining marriage rights for same-sex couples and had that as one of its published and funded goals? I think you have an obligation to first make the case that the situation was sufficiently similar in both Thomas’ and Reinhardt’s cases before requesting a single rule that applies to both. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [November 16, 2011, 3:14pm UTC](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077/16 "2011-11-16T15:14:44Z")
Kagan has already recused herself from several cases due to her service in the administration. In one important case in my area of the law, her recusal resulted in a 4-4 tie, leaving an important issue unresolved and she has recused herself again from another case in my field that was just argued. I wonder if anyone has compiled statistics comparing Kagan’s recusals to other members of the court? ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [November 16, 2011, 3:51pm UTC](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077/17 "2011-11-16T15:51:51Z")
> [@Acsenray](#): > > Kagan has already recused herself from several cases due to her service in the administration. In one important case in my area of the law, her recusal resulted in a 4-4 tie, leaving an important issue unresolved and she has recused herself again from another case in my field that was just argued. I wonder if anyone has compiled statistics comparing Kagan’s recusals to other members of the court? Having served in an administration (especially the current one) leads to opportunities for recusing herself that other justices who haven’t served in that capacity simply wouldn’t have. ---
**Author:** ![Tom\_Tildrum](https://avatars.discourse-cdn.com/v4/letter/t/e95f7d/32.png) [@Tom\_Tildrum](https://boards.straightdope.com/u/Tom_Tildrum)\ **Post date:** [November 16, 2011, 3:55pm UTC](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077/18 "2011-11-16T15:55:37Z")
> [@John\_Mace](#): > > Having served in an administration (especially the current one) leads to opportunities for recusing herself that other justices who haven’t served in that capacity simply wouldn’t have. For instance, Rehnquist recused himself from _US v. Nixon_ (the Watergate executive privilege case) because he had served in the Justice Department in the Nixon administration. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [November 16, 2011, 4:01pm UTC](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077/19 "2011-11-16T16:01:22Z")
> [@John\_Mace](#): > > Having served in an administration (especially the current one) leads to opportunities for recusing herself that other justices who haven’t served in that capacity simply wouldn’t have. I believe that this was implicit in my post. That’s why I am curious to see statistics to confirm whether this is true. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [November 16, 2011, 4:03pm UTC](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077/20 "2011-11-16T16:03:51Z")
> [@Acsenray](#): > > I believe that this was implicit in my post. That’s why I am curious to see statistics to confirm whether this is true. OK, but I don’t think statistics alone are going to tell you much, since each justice has his/her own unique history that informs the decisions to recuse. Maybe if you looked at all justices who had served in administrations vs all those who hadn’t. [Next page](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077.md?page=2)