# 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:** 3
**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, 11:18pm UTC](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077/41 "2011-11-16T23:18:32Z")
Despite the similarity of their names (and the Virginia Thomas connection), Liberty Central and Liberty Consulting are two separate companies. Liberty Central is a non-profit advocacy group which Thomas was President of until December 2010. Liberty Consulting is a for-profit lobbying firm that Thomas founded in February 2011. What I haven’t been able to find is what specific connection there is between either business and the health care industry. Can somebody provide a cite as to what health care companies gave money to either organization? Liberty Central has other issues involved. First, Liberty Central was a non-profit advocacy group. So arguably, it’s free to accept donations from anyone without being obligated to advance the interests of that donor. Liberty Central could in theory accept donations from a health care company and then argue in favor of legislation that would harm the health care company. Realistically, I think most people would recognize that possibility as remote and would concede that the commonality of the interests shared by an advocacy group and its donors affect the flow of money between them. But the second and more important issue is that, as I said, Virginia Thomas no longer works of Liberty Central. So any decision made by Clarence Thomas on matters related to Liberty Central would have no effect on his wife at this point. I feel that’s a legitimate argument that Clarence Thomas doesn’t have to recuse himself based on Virginia Thomas’ involvement with Liberty Central. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [November 16, 2011, 11:22pm UTC](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077/42 "2011-11-16T23:22:46Z")
The manufactured “calls” for Kagan’s recusal are just another example of standard Rove/Fox tactics - if your side, or guy, has a weakness, first accuse the other guys of something superficially similar enough to convince your true-blues. That inoculates you against the charge, because even mentioning it at that point simply sounds like rubber-glue. Re Thomas and Scalia, is there really any doubt they hold their party above their oaths? Or at least that, even if they do vote consistently with precedent, that they’ll be retching over it? ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [November 16, 2011, 11:25pm UTC](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077/43 "2011-11-16T23:25:19Z")
> [@Acsenray](#): > > Congress can restrict interstate provision of health insurance only if health insurance is interstate commerce. Thus, if the restriction on interstate provision of health insurance is constitutional, then it must be because all regulation of health insurance is interstate commerce. The court has differentiated between wholly intrastate and interstate markets in the past. They _could_ do so here. The court has also allowed congress to define the scope of its own powers at times, such as when it finds that state laws are preempted because congress had filled the scope of regulation in a particular area. ---
**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, 11:25pm UTC](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077/44 "2011-11-16T23:25:52Z")
> [@Bricker](#): > > Could you give me a link to that website? Unfortunately I cannot. I can provide you with cites that report that Ms Thomas’ “experience and connections” were mentioned on the official company website. But the actual website - [libertyinc.co](http://libertyinc.co) - appears to be offline. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 17, 2011, 12:11am UTC](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077/45 "2011-11-17T00:11:36Z")
> [@Little\_Nemo](#): > > Unfortunately I cannot. I can provide you with cites that report that Ms Thomas’ “experience and connections” were mentioned on the official company website. But the actual website - [libertyinc.co](http://libertyinc.co) - appears to be offline. I’d like to know something more beyond those three words. Did the next sentence talk about her experience lobbying, or did it hint at her husband’s job? Every lobbyist presumably sells his or her experience and connections. I daresay that experience and connections were in part what led to the ACLU to offer the director’s job to Ramona. I’d like to see just how those connections were mentioned before I conclude that there was anything remotely improper. I can hardly expect Ms. Thomas, or any lobbyist, to say, “Hire me, even though I have no experience and no connections.” ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 17, 2011, 12:13am UTC](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077/46 "2011-11-17T00:13:51Z")
> [@Little\_Nemo](#): > > What I haven’t been able to find is what specific connection there is between either business and the health care industry. Can somebody provide a cite as to what health care companies gave money to either organization? Undoubtedly **Steve MB** has that information; he must have relied upon it to post what he did. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [November 17, 2011, 12:24am UTC](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077/47 "2011-11-17T00:24:38Z")
> [@Little\_Nemo](#): > > Unfortunately I cannot. I can provide you with cites that report that Ms Thomas’ “experience and connections” were mentioned on the official company website. But the actual website - [libertyinc.co](http://libertyinc.co) - appears to be offline. [Supporting evidence here.](http://www.politico.com/news/stories/0211/48812.html) The focus there is on Tea Party activism - and what do you think got them riled up? Some specific example of socialism being rammed down their throats? And hmm, what “connections” could she have been referring to? Wonderwonderwonder … ---
**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 17, 2011, 1:54am UTC](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077/48 "2011-11-17T01:54:10Z")
Justice Breyer on the Thomas recusal issue: [Link.](http://lawyersusaonline.com/dcdicta/2011/06/30/breyer-defends-thomas-in-ethics-controversy/) > [@](#): > > “This is a false issue,” Breyer said. “As far as what your wife does or your husband does, I myself try to stick to a certain principle, and feel very strongly about it, that a wife or a husband is an independent person and they make up their own minds what their career is going to be.” > > \ > > “The Supreme Court is different in one respect. In every other court,” Breyer said. “If [I’m a circuit judge and]I decided in a close matter to recuse myself, that’s the easy decision. That’s one fewer case I have to decide, and besides, they’ll bring in somebody else to decide it. If I recuse myself on the Supreme Court, there is no one else and that could switch the result.” ---
**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 17, 2011, 1:55am UTC](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077/49 "2011-11-17T01:55:43Z")
> [@ElvisL1ves](#): > > [Supporting evidence here.](http://www.politico.com/news/stories/0211/48812.html) The focus there is on Tea Party activism - and what do you think got them riled up? Some specific example of socialism being rammed down their throats? > > And hmm, what “connections” could she have been referring to? Wonderwonderwonder … So, are you saying that Thomas would rule a certain way if he wasn’t married to his current wife, and that he rules a different way because of her influence over him? I thought the meme was that he just ruled with whatever Scalia says. Maybe I didn’t get the memo with the update. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [November 17, 2011, 3:00am UTC](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077/50 "2011-11-17T03:00:08Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Neither Raich nor Wickard must be applied here. The Justices could just as easily apply Lopez, in which the Court expressly found that congressional enactments not strictly tied to commerce were beyond the Commerce Clause power (even when partially enacted _to reduce the cost of insurance_- in this case, liability insurance for public schools). > > To _me_, it’s a foregone conclusion that healthcare is by its very nature a form of interstate commerce. On the other hand, health insurance is arguably not directly related to interstate commerce because Congress has declined to allow insurers to compete directly across state lines. In Lopez and Morrison, the activities in question were not directly tied to commerce (gun possession and domestic violence respectively). In Raich, Wickard, and this case, the underlying products (wheat, marijuana, and health care) are economic products tied directly to commerce. The “inference upon inference” that Rehnquist talked about in Lopez is not present here. On the other hand, the Court ruled in the Lottery cases that Congress can regulate interstate commerce by completely outlawing interstate commerce in a product (lottery tickets in that case, health care in this case) ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [November 17, 2011, 3:02am UTC](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077/51 "2011-11-17T03:02:40Z")
> [@ElvisL1ves](#): > > The manufactured “calls” for Kagan’s recusal are just another example of standard Rove/Fox tactics - if your side, or guy, has a weakness, first accuse the other guys of something **superficially similar** enough to convince your true-blues. (emphasis added) An email which says, “WE GOT THE VOTES! YAYAYAYAY!” (paraphrasing) is “superficial”? You really think that she is impartial? ---
**Author:** ![treis](https://avatars.discourse-cdn.com/v4/letter/t/bc79bd/32.png) [@treis](https://boards.straightdope.com/u/treis)\ **Post date:** [November 17, 2011, 4:12am UTC](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077/52 "2011-11-17T04:12:31Z")
> [@John\_Mace](#): > > So, are you saying that Thomas would rule a certain way if he wasn’t married to his current wife, and that he rules a different way because of her influence over him? > > I thought the meme was that he just ruled with whatever Scalia says. Maybe I didn’t get the memo with the update. Judges are not supposed to avoid only impropriety, they are supposed to avoid the appearance of it. Your wife taking money specifically to influence people in power is over the line. Maybe Thomas and his wife has successfully firewalled their relationship, but we have no real way of knowing. I sure know that if I were in front of the SCOTUS, I’d be pretty concerned to find out that the other side paid money to Thomas’ wife for lobbying. ---
**Author:** ![gonzomax](https://avatars.discourse-cdn.com/v4/letter/g/e8c25b/32.png) [@gonzomax](https://boards.straightdope.com/u/gonzomax)\ **Post date:** [November 17, 2011, 4:33am UTC](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077/53 "2011-11-17T04:33:39Z")
That is the point. The illusion of impropriety is as damaging to the court as factual impropriety.If it looks bad and will cause the decisions to be questioned, you should recuse yourself. I am sure every judge believes that can rule properly in spite of their connections. That is not the point, whether it is true or not. They have a responsibility to preserve the image of the court. Scalia and Thomas don’t seem to care about that at all. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [November 17, 2011, 5:03am UTC](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077/54 "2011-11-17T05:03:41Z")
> [@jtgain](#): > > On the other hand, the Court ruled in the Lottery cases that Congress can regulate interstate commerce by completely outlawing interstate commerce in a product (lottery tickets in that case, health care in this case The distinction is that Congress hasn’t outlawed interstate commerce in health insurance; it just hasn’t legislated to _allow_ it. In the absence of federal legislation, the states have taken it on themselves to bar foreign insurers from offering health insurance products across their borders. ---
**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 17, 2011, 9:41am UTC](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077/55 "2011-11-17T09:41:21Z")
> [@jtgain](#): > > (emphasis added) > > An email which says, “WE GOT THE VOTES! YAYAYAYAY!” (paraphrasing) is “superficial”? You really think that she is impartial? Is it impossible for a person to personally support the passage of a law, yet feel that it might not be constitutional? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 17, 2011, 1:37pm UTC](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077/56 "2011-11-17T13:37:34Z")
> [@gonzomax](#): > > That is the point. The illusion of impropriety is as damaging to the court as factual impropriety.If it looks bad and will cause the decisions to be questioned, you should recuse yourself. How does that reasoning not apply to Reinhardt, then? ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [November 17, 2011, 2:10pm UTC](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077/57 "2011-11-17T14:10:59Z")
> [@Smapti](#): > > Is it impossible for a person to personally support the passage of a law, yet feel that it might not be constitutional? It’s possible, but not exactly consistent with the role of the Attorney General. I think a better argument is that it’s possible for her to have supported its passage without making up her mind about its constitutionality, but that would depend on whether she was in office when it was drafted (I think she was). ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 17, 2011, 2:44pm UTC](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077/58 "2011-11-17T14:44:07Z")
> [@Really\_Not\_All\_That\_Bright](#): > > It’s possible, but not exactly consistent with the role of the Attorney General. I think a better argument is that it’s possible for her to have supported its passage without making up her mind about its constitutionality, but that would depend on whether she was in office when it was drafted (I think she was). Solicitor General. And because I haven’t explictly made my opinion known: I haven’t heard a single thing that supports Kagan’s recusal in this case. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [November 17, 2011, 2:47pm UTC](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077/59 "2011-11-17T14:47:58Z")
I just don’t really see why having advocated something disqualifies one from objectively evaluating it afterwards. Kids on the debate team would never be allowed to judge anything ever again. ---
**Author:** ![treis](https://avatars.discourse-cdn.com/v4/letter/t/bc79bd/32.png) [@treis](https://boards.straightdope.com/u/treis)\ **Post date:** [November 17, 2011, 2:48pm UTC](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077/60 "2011-11-17T14:48:42Z")
> [@Bricker](#): > > How does that reasoning not apply to Reinhardt, then? Because she isn’t taking money based on her ability to influence people in power. [Previous page](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077.md?page=2) [Next page](https://boards.straightdope.com/t/both-thomas-and-kagan-face-pressure-to-recuse/603077.md?page=4)