The great debate over Obamacare will initially begin with who will actually be making the decision. Conservatives are demanding liberal Supreme Court Justice Elena Kagan sit this one out while liberals request the same of conservative Justice Clarence Thomas. Conflict of interest is the war cry on both sides as both justices refuse to yield to the mounting pressure.
None of the parties has officially asked either justice to step away from the case, but the opposing sides know (or think they know) how Kagan and Thomas will vote – that being one for and one against the health care reform law. Liberal Kagan was appointed by President Obama and conservative Thomas by George H.W. Bush.
The stakes on the outcome of this decision could not be higher in an election-year. The justices will review a law extending health care coverage to more than 30 million Americans. Both Republicans and Democrats are vying for the most favorable circumstances to ensure their side is victorious. Allowing one side or the other to eliminate a potential negative opinion could mean everything at this point according to the judicial experts.
But are the two justices on equal footing with the reasoning behind their possible exclusion?
Republicans charge that Kagan’s days at the Justice Department have not been fully disclosed. She was Obama’s solicitor general, which in layman’s terms means top Supreme Court attorney. Kagan held the post before her nomination to the Supreme Court. Conservative lawmakers charge that the public has the right to know exactly the extent of her views on legislation she reviewed while solicitor general. That would include any pertaining to health care reform and Obamacare specifically.
Democrats charge that Thomas has a conflict of interest emanating from his wife’s involvement with several groups opposed to Obamacare. His detractors feel his involvement in the case would cross the line of impartiality with the blurry charge of a financial stake in his wife’s participation in the dismantling of the current health care law.
It is obvious that both sides of the argument are fiercely partisan. Legal experts look at the complaints as fear of an additional nay vote rather than any real concern about existing law. Both sides know the gravity of losing this case in the heat of a presidential campaign. It is predicted the opinion would be rendered around the June, 2012 time period, approximately two months before party conventions in Charlotte , NC and Tampa, FL respectively.
As it stands now, federal law strictly requires that any judge sit out a case “his impartiality might reasonably be questioned.” Therein lies the difference between the Kagan conflict and the perceived Thomas problem.
Another provision of the law, which kept Kagan out of 28 cases at the Supreme Court, centers around a judge formerly serving as a government lawyer – that being Kagan. In other words, an individual who served as counsel or adviser “concerning the proceeding or expressed an opinion concerning the merits of the particular case or controversy.”
During her confirmation hearings in 2010, Kagan admitted to “attending at least one meeting where the existence of the (health care) litigation was briefly mentioned, but none where any substantive discussion of the litigation occurred.” This testimony allows the current justice to avoid outright denial while minimizing the impact and skirting any charge of perjury later.
This alone separates the Kagan situation in a definitive way from Thomas. Thomas’s status for inclusion in the opinion does not center on him specifically, but another American’s right to their own personal opinion. It is clearly constitutional.
Under the Freedom of Information Act, e-mails indicate Kagan had a greater involvement at the Justice Department pertaining to legal strategy with the administration than she is acknowledging. Again, she admitted sitting in on one inconsequential meeting to allow her memory to “deepen” in any later questioning.
It’s important to remember she wasn’t appointed to the Supreme Court as an incompetent student of the law.
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