Group wants Kagan, Thomas to explain recusal decision

By Jessica M. Karmasek | Nov 29, 2011


WASHINGTON (Legal Newsline) - The group Justice at Stake is urging U.S. Supreme Court Justices Elena Kagan and Clarence Thomas to give a public explanation as to why they are not recusing themselves from the federal health care case.

In a statement Monday, JAS, a non-partisan group that aims to protect courts from special interests, said the justices are not required to explain their decision to stay on the case. However, given the "heightened scrutiny" the case has received, a full explanation would provide a better understanding of the Court and promote public trust and confidence, it says.

"We strongly urge them to consider putting their reasoning into the public record," the group said.

Fourteen states, later joined by 12 others, filed a challenge to the law in March 2010. The 26 states contend that its individual mandate requiring that all Americans purchase health insurance or face a $695 penalty every year is unconstitutional.

The states filed a petition in September to have their challenge heard immediately by the U.S. Supreme Court.

The nation's high court agreed earlier this month to hear the case.

Kagan, in particular, has been targeted by various public interest groups, all of which argue that she should recuse herself from the multistate challenge to President Barack Obama's health reform.

The Judicial Crisis Network, a Washington-based group committed to upholding the Constitution and limited government, published a "white paper" earlier this month pointing out that Kagan, as solicitor general for Obama, was directly involved in the defense of the law.

"As President Obama's top advocate, Kagan headed the office responsible for formulating the administration's defense of (Patient Protection and Affordable Care Act) -- and oversaw the arguments both on appeal and in the lower courts because of PPACA's national importance," according to the 10-page paper.

"The president is now asking her to adopt the very same positions her office helped craft for him on this matter, but this time, as a Supreme Court Justice."

In May, Judicial Watch, which says it investigates and prosecutes government corruption, released highlights from documents received through a Freedom of Information Act lawsuit.

The group says a Jan. 8, 2010 e-mail from former Deputy Solicitor General Neil Katyal shows Kagan was directly involved in the strategy to defend the law.

Katyal wrote that Kagan would be brought in "as needed" for cultivating a defense. Katyal also urged Kagan to attend a health care litigation meeting in March 2010.

Judicial Watch says, "In another e-mail exchange that took place on Jan. 8, 2010, Katyal's Department of Justice colleague Brian Hauck asked Katyal about putting together a group to discuss challenges to ObamaCare. 'Could you figure out the right person or people for that?' Hauck asked. 'Absolutely right on. Let's crush them,' Katyal responded. 'I'll speak with Elena and designate someone.'"

Kagan has not yet recused herself from hearing the lawsuits challenging the constitutionality of the health care package. She also apparently participated in a vote that declined to expedite Virginia Attorney General Ken Cuccinelli's own challenge to the law.

As for Thomas, some House Democrats earlier this year urged him not to sit on the case because of his wife's opposition to the health care law.

Virginia Thomas, an attorney, founded the conservative advocacy group Liberty Central in 2009. She also is affiliated with the Tea Party, one of the groups opposing Obama's health reform.

JAS says these calls for Kagan not to hear the case, along with Thomas, have "greatly heightened" public attention to the issue of judicial recusal and disqualification.

However, such calls require the "balancing" of several important factors, the group says.

"First, each Supreme Court justice has the final word on whether to hear a case or step aside. Justices do not have to explain their reasoning, but they may voluntarily choose to do so," it said.

"Second, a key goal of recusal is to assure the public, even though it has no direct role in a particular case, that court proceedings are fair and impartial."

The public's expectation of a fair process is even more heightened in cases involving legal questions that have a broad impact, such as the health care reform, JAS notes.

"When a case rises to the top of the public's consciousness -- to a level that is likely to affect public confidence in the court system -- there are instances where the public benefits from hearing a justice's reasons for staying on a case or stepping aside. This heightened public interest can exist even if lawyers in the case do not formally seek a judge's removal," the group said.

JAS, which offered its recommendation "carefully and with caution," says there is a risk that some recusal demands will be pursued simply for political reasons.

"Many legal ethics experts do not believe that recusal is warranted for either Justice Kagan or Thomas," the group said.

"But given the importance of the health care case to the lives of many Americans, and the rare public education opportunities that such high-profile cases offer, we believe written explanations by Justices Kagan and Thomas offer the best available avenue for assuring the public that the Supreme Court will be fair and impartial -- adhering to the law, the Constitution and relevant Supreme Court precedent."

The group says if disqualification should be sought by any party in the case, it "strongly encourages" any challenged justice to issue a written decision and explanation of his or her reasoning.

"Properly implemented, judicial recusal promotes public trust and impartial justice by reducing the chance that judges will participate in cases where there is a reasonable fear that they may be biased. But recusal must also permit judges to do the job they are qualified and sworn to do," JAS said.

From Legal Newsline: Reach Jessica Karmasek by email at

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