July 31, 2014 SIGN IN | REGISTER
Roll Call

Court’s Recusal Issue Still Unsettled

Scott J. Ferrell/CQ Roll Call File Photo
Conservatives have called for Supreme Court Justice Elena Kagan to recuse herself from the case considering the constitutionality of the health care reform law.

The Supreme Court might have blocked a conservative activist from participating in oral arguments against the health care law, but stakeholders maintain it's not a setback in their larger push for Justice Elena Kagan to recuse herself during deliberations this spring.

The high court rejected Freedom Watch founder Larry Klayman's request to participate in oral arguments, although his amicus brief maintaining that Kagan should not participate in the case still stands.

Klayman, a conservative dynamo who also founded Judicial Watch, said Monday's decision "is not a setback." Ed Whelan, another conservative legal scholar, called the announcement "insignificant" to the broader dispute over whether Kagan should recuse herself.

Conservatives have pushed for Kagan to step aside when the Supreme Court considers the constitutionality of the health care reform law this spring. The newest justice on the court served as President Barack Obama's solicitor general while the law was being crafted in Congress in 2009 and 2010, and conservative legal observers maintain Kagan's role in the executive branch during that time prevents her from considering the law fairly in court.

Supreme Court justices decide on their own whether to recuse themselves in cases when their impartiality might be in question, and advocates of all political stripes gripe that the lack of protocol in deciding when to step back is a problem. Scrutiny over the issue has only grown in the months since it was announced the Supreme Court would take up the health care law, a highly political issue that will come before the court just as the 2012 campaign season is in full swing.

Klayman said Monday's decision suggests the high court is avoiding the thorny issue of conflicts of interest and whether justices should step aside in pending cases in which they might have a vested interest.

"Apparently, the Supreme Court thinks it will be embarrassed if it, in effect, allows the American people to speak and wants to quietly sweep the issue of its own ethics and respect for the law under the table," Klayman said in a release.

But Klayman vowed to press on, noting in an interview that he spoke with House Judiciary Committee staff about holding a hearing on the matter and calling for Chief Justice John Roberts and Kagan to testify. Roberts has maintained that justices should not recuse themselves from hearing cases unless absolutely necessary, and in a year-end report in December, he said, "I have complete confidence in the capability of my colleagues to determine when recusal is warranted."

The conservative Klayman is not the only one who has taken issue with that stance. Congressional Democrats have maintained for months that Justice Clarence Thomas should step aside from participating in deliberations of the health care reform law because of his wife's tenure at the Heritage Foundation.

The conservative organization was an ardent opponent of the measure while it was working its way through Congress, and Democrats say Thomas will therefore not be an impartial arbiter of the case when the law's constitutionality is considered.

A group of 20 House Democrats led by Rep. Louise Slaughter (N.Y.) called on the Judicial Conference of the United States, the governing body for federal courts, to look into what they said were Thomas' ethical violations last year. The lawmakers charged that Thomas did not report his wife's income from the Heritage Foundation. The Judicial Conference has not responded.

A spokeswoman for House Judiciary Chairman Lamar Smith (R-Texas) said, "We have been very active with trying to get information from DOJ regarding what role Justice Kagan may have played in discussions regarding Obamacare while she was solicitor general."

Smith's Senate counterpart, Judiciary Chairman Patrick Leahy (D-Vt.), has also looked into the matter and held a high-profile hearing last year on the issue of recusal featuring Justices Stephen Breyer and Antonin Scalia.

Despite the efforts from legal observers and Members, the Supreme Court is not expected to bow to the political pressure. While Kagan abstained from Monday's decision on Freedom Watch's request, it's not considered to be a hint that she will likewise sit back when the health care law comes before the court.

"Whether it's the Congress or the courts of the executive branch, the American people don't feel like they have a voice," Klayman complained.

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