Recusing Elena Kagan

The following editorial was published in "The Morning Call" (circulation 90,000) on February 2, 2012. The original piece can be found here: http://www.mcall.com/opinion/yourview/mc-justice-kagan-health-care-law-rozsa-yv--20120201,0,6790089,print.story

As Obama's health care law reaches the Supreme Court, the clamor from conservatives and their libertarian sympathizers becomes shriller every day. From Dick Morris and Hans von Spakovsky to WorldNetDaily and The Washington Times, the call rings clear:

Justice Elena Kagan, they insist, must recuse herself from the case.

The argument against Kagan hinges on the assumption that her service as solicitor general under Barack Obama violates the U.S. Code section stating that "any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned."

For this to apply to Kagan, a precedent would need to exist in which other ex-solicitors general who served on the Supreme Court were compelled to recuse themselves when asked to rule on policies they had supported under their presidential bosses.

Instead the previous jurists to whom this would have indisputably applied (William Howard Taft, Stanley Reed, Robert H. Jackson, and Thurgood Marshall) had the matter left to their personal judgment. Indeed, because so many Supreme Court judges have had politically active pasts before their appointments, it would have been unrealistic to disqualify them each time a controversial issue intersected with their earlier careers.

Hence Taft, who had been solicitor general for Benjamin Harrison before being appointed to the court by Warren Harding, was around to rule on antitrust cases despite having helped draft the Sherman Antitrust Act under Harrison (as well as vigorously enforcing it during his own presidency). Similarly, Marshall was allowed to uphold regulations that prevented racial discrimination in the sale of private property even though he had supported Lyndon Johnson's Fair Housing Act while serving as his solicitor general.

Although there is no historical or legal basis supporting a Kagan recusal, the same can't be said about one of her peers. A financial disclosure form released last year revealed that Clarence Thomas' wife, Virginia "Ginni" Thomas, received more than $150,000 from a political action committee that has been especially vocal in opposing health care reform, in addition to nearly $15,000 from a lobbying firm that has focused on that issue. What's more, between 2003-07 she received more than $600,000 from the Heritage Foundation, which has been at the forefront of the anti-health care reform movement.

When comparable financial conflicts of interest were discovered about Judge Abe Fortas in the 1960s, they ultimately ended his judicial career, first forcing him to ask President Johnson to withdraw his nomination for chief justice (after it came out that business groups with potential court interests had paid him $15,000 to deliver a series of speeches) and then leading to his
resignation (after it was discovered he had accepted a $20,000 annual retainer from a Wall Street financier who was under investigation for securities violations).

Since the precedent sorely lacking in the anti-Kagan movement actually does exist against Thomas, it would stand to reason that the people calling for her removal from the health care case would also be demanding the abstention of her conservative colleague.

They aren't demanding that, of course, because the hoopla over Kagan isn't really driven by a sincere concern about judicial ethics. The only reason right-wingers are focusing on Kagan's relationship with Obama is because they believe her recusal will increase the likelihood of the health care law being overturned. Since having Thomas step down as well would negate the advantage of removing Kagan, they dismiss his conflict of interest even as they harp on
hers.

This kind of logical inconsistency is by no means limited to the health care law and the Supreme Court. It can be seen when conservatives and libertarians denounce the so-called fiscal irresponsibility of Obama's $1.2 trillion in stimulus funds but ignore, or even support, the nearly $1.3 trillion we've spent so far for Bush's stimulus, the massive tax cuts of 2001 and 2003.

Likewise, it is evident when right-wingers who speak of the need for small government support policies that expand the state's power so long as it promotes their specific ideological objectives (like stopping homosexuals from getting married or curtailing women's reproductive rights).

In short, the Recuse Kagan campaign isn't only noteworthy as a particularly egregious instance of partisanship trumping reason, but it also serves as one more example of the double standards used by the political right when trying to advance its agenda.