Tuesday, May 31, 2011

Recuse me?? RECUSE YOU!!

Very soon ObamaCare will be before the Supreme Court of the United States. With out even having to hear arguments, it is assumed that this will be a 5-4 decision against the individual mandate, thus the entire law will be declared unconstitutional. With this decision nearly assured, those on the left are targeting one justice to recuse himself from the case, citing conflict of interest. Who is that justice? Well, the left's perpetual whipping boy, Clarance Thomas.

The left says that Justice Thomas has a conflict of interest because his wife works for an organization that is against ObamaCare. She is compensated for her work. However, as the case that is being brought to the Supreme Court has as the Plaintiff various states in the union, and the Federal Government as the Defendant, and Mrs. Thomas has worked for neither party, it is difficult to point to exactly where the conflict of interest is.

In Supreme court cases in modern times Justices typically hold to two sections of Title 28 of the United States Code (the Judicial Code) provide standards for judicial disqualification or recusal. Section 455, captioned "Disqualification of justice, judge, or magistrate judge," provides that a federal judge "shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." The same section also provides that a judge is disqualified "where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding"
So, normally the justices would recurse themselves in cases where they had a direct financial interest or if their children were lawyers for one of the parties. Examples would be when Justice Sandra Day O'Connor recursed herself from many cases involving telecommunications companies, because she owned stock in one or the other company.

In the case of Justice and Mrs. Thomas, we have an interesting setting. The two are married, but they file separate tax returns. So, in financial disclosure, Justice Thomas has no financial interest in any group that either supports or opposes ObamaCare. The left is then attempting to make the very ironic argument that a man and wife are the same person, regardless of how they file their taxes. They say that because Mrs. Thomas makes money from an unrelated organization that opposes ObamaCare, this means that Justice Thomas has a financial interest in the failure of ObamaCare.

When I look at this argument, it doesn't seem to hold water... Wouldn't Justice Thomas be FOR ObamaCare if his wife makes money in the opposition of the law? If the law is ruled unconstitutional, wouldn't that put his wife out of a job?

Anyway this is all well and good, the left has no legal foot to stand on here, and are reduced to simply putting pressure on Justice Thomas. As if that will work. The guy grew up wishing he could become simply dirt poor, in the Jim Crow south. Worked his way up, and was opposed at every single step of the way. First because of his race, then because of his race and his politics. The guy has a will of solid steel, and you think a a could of whining liberals are going to change his mind?? HA!!

The real question of recusal should be coming from the right. Justice Elena Kagan served as the chief legal advisor to the Administration. As such was intimately involved in the forming of ObamaCare. As such, Justice Kagan has recused herself from several cases in which she advised the Executive branch. There is a direct conflict of interest here in this case as well. However Justice Kagan has not said that she will step down for this particular case.

So, for a law that has very little to do with health care, and everything to do with power, games are being played. Surprise, surprise. In my opinion there is nothing constitutional about the ObamaCare law, and it is likely that the SCOUTS will agree with me. If Kagan and Thomas both recuse themselves, we still end up with a 4-3 majority against the individual mandate. However if Justice Thomas leaves, and Kagan stays, it is likely to be a 4-4 tie, thus the case reverts to the Appellate court 's decision. This is good for the left, because the US Appellate court is notoriously liberal.

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