Thomas, Kagan asked to sit out health care overhaul case

WASHINGTON -- Conservative interest groups and Republican lawmakers want Justice Elena Kagan off the health care case. Liberals and Democrats in Congress say it's Justice Clarence Thomas who should sit it out.

Neither justice is budging -- the right decision, according to many ethicists and legal experts.

None of the parties in the case has asked the justices to excuse themselves. But underlying the calls on both sides is their belief that the conservative Thomas is a sure vote to strike down President Barack Obama's health care law and that the liberal Kagan is certain to uphold the main domestic achievement of the man who appointed her.

The stakes are high in the court's election-year review of a law aimed at extending coverage to more than 30 million people. Both sides have engaged in broad legal and political maneuvering for the most favorable conditions surrounding the court's consideration of the case.

Taking away just one vote potentially could tip the outcome on the nine-justice court.

Republican lawmakers recently have stepped up their effort against Kagan, complaining that the Justice Department has not fully revealed Kagan's involvement in planning the response to challenges to the law. Kagan was Obama's solicitor general, the administration's top Supreme Court lawyer, until he nominated her to the high court last year.

"The public has a right to know both the full extent of Justice Kagan's involvement with this legislation while she was solicitor general, as well as her previously stated views and opinions about the legislation while she was serving as solicitor general," the House Judiciary Committee chairman, Rep. Lamar Smith, R-Texas, said Tuesday in a letter to Attorney General Eric Holder.

Democrats have said Thomas has a conflict of interest stemming from the work of his wife, Virginia, with several groups that opposed the health care overhaul.

"From what we have already seen, the line between your impartiality and you and your wife's financial stake in the overturn of health care reform is blurred," 74 Democrats wrote Thomas in February. The lead writer was Anthony Weiner, the New York Democrat who resigned from Congress in June over his use of Twitter to send explicit photos of himself to women.

One lawmaker who signed the letter, Rep. Louise Slaughter, D-N.Y., said she feels even more strongly now that Thomas has a conflict. She wants the Justice Department to investigate Thomas for omitting his wife's employers, including the Heritage Foundation and the tea-party linked Liberty Central, from his annual financial disclosure reports.

The campaigns against the justices are partisan, suggesting to some legal experts that the complaints are less about perceived conflicts than the outcome of the health care case.

"They are not doing it in the dark about how they think the justices will rule," said University of Notre Dame law professor Richard Garnett.

Looking at the claims made against Thomas and Kagan, Garnett said, "I don't think there's really a plausible case that either of these two justices should feel the need to recuse themselves."

Still, interest groups and lawmakers on both sides have sought to paint a picture of a justice who is hopelessly compromised and has no choice but to recuse, the term for a judge stepping out of a case. They also say there is no basis for the justice with whom they agree to step aside -- Thomas for the conservatives, Kagan for the liberals.

"She has been exceedingly careful, unlike Justice Thomas," Nan Aron of the liberal Alliance for Justice said of Kagan.

Carrie Severino, a former law clerk for Thomas and chief counsel to the conservative Judicial Crisis Network, said the attacks on Thomas are groundless. "It's possible it's a pre-emptive strike because they knew there would be questions raised about Kagan's participation," Severino said.

Federal law requires any judge to sit out a case in which one of several conditions is met, including if "his impartiality might reasonably be questioned."

Another provision of the law that has triggered Kagan's decision to stay out of 28 cases since she joined the court concerns a judge who formerly served as a government lawyer. A judge should not participate if he or she served as counsel or adviser "concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy."

Kagan was as Obama's solicitor general before he nominated her last year to take the seat of Justice John Paul Stevens. She testified during her confirmation hearing in 2010 that she "attended at least one meeting where the existence of the litigation was briefly mentioned, but none where any substantive discussion of the litigation occurred." Kagan left the administration in August, about five months after the health care overhaul became law.

She said she would not take part in cases in which she "participated in formulating the government's litigating position."

Some opponents of the law said that Kagan did enough as solicitor general to meet her standard for stepping aside. They said emails released by the Justice Department under the Freedom of Information Act show Kagan had greater involvement in the administration's legal strategy than she acknowledged.

Most of the emails were written by Kagan's then-deputy, Neal Katyal. In one message, he said Kagan wanted her office "to be involved in this set of issues." In another, Katyal said he was copying Kagan on an email in which he offered recommendations on steps the Justice Department could take to counter a challenge to the law. "I haven't discussed this with Elena, but am cc'ing her here," Katyal said.

They also point to Kagan's email exchange with Larry Tribe, then an adviser at the Justice Department, about an upcoming vote on the legislation in the House of Representatives. "I hear they have the votes, Larry! Simply amazing," she said.

Senate Republican leader Mitch McConnell of Kentucky and three other GOP senators asked Holder last week to provide more information about Kagan's involvement.

"When a former member of the administration is in a position to rule on litigation in which she apparently had some involvement and which concerns legislation she herself supports, public confidence in the administration of justice is undermined," they said.

Even before the court decided to hear the case, conservative advocate Severino wrote that "the legitimacy of any decision where she is in the majority or plurality would be instantly suspect if she chooses not to recuse herself."

Liberal advocate Aron said Thomas should issue a written explanation to "reassure the public that his decision-making won't be compromised by his past activities."

Each side has said public confidence in the court will be hurt by the targeted justice's participation in the health care case.

But University of Pittsburgh law professor and ethics expert Arthur Hellman said the attacks, if sustained, can themselves undermine faith in an independent judiciary. "These personalized attacks can have an effect over time on the stature of the judiciary as something outside politics," Hellman said.

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