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House Democrats Call On Justice Thomas To Recuse Himself From Heathcare Litigation

Given all the press attention that’s been given to the political activism of Virginia Thomas, this doesn’t come as a surprise at all:

Seventy-four House Democrats have signed a letter to Clarence Thomas asking the Supreme Court justice to recuse himself from any deliberations on the constitutionality of the national health care overhaul, arguing that his wife’s work as a lobbyist creates “the appearance of a conflict of interest.”

The move is the latest indication that the court battle over the health-care law’s constitutionality — which is expected to be ultimately decided by the Supreme Court — has already become a political tit-for-tat.

“The appearance of a conflict of interest merits recusal under federal law,” the House Democrats wrote. “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. Your spouse is advertising herself as a lobbyist who has ‘experience and connections’ and appeals to clients who want a particular decision — they want to overturn health-care reform. Moreover, your failure to disclose Ginny Thomas’s receipt of $686,589 from the Heritage Foundation, a prominent opponent of health-care reform, between 2003 and 2007 has raised great concern.”

The relevant law here is the Code of Conduct for United States Judges, specifically Canon 3(C)(1), which covers circumstances is mandatory:

A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances in which:

(a)  the judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
(b) the judge served as a lawyer in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter, or the judge or lawyer has been a material witness;
(c)  the judge knows that the judge, individually or as a fiduciary, or the judge’s spouse or minor child residing in the judge’s household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be affected substantially by the outcome of the proceeding;
(d) the judge or the judge’s spouse, or a person related to either within the third degree of relationship, or the spouse of such a person is:

(i) a party to the proceeding, or an officer, director, or trustee of a party;
(ii)  acting as a lawyer in the proceeding;
(iii) known by the judge to have an interest that could be substantially affected by the outcome of the proceeding; or
(iv) to the judge’s knowledge likely to be a material witness in the proceeding;
(e) the judge has served in governmental employment and in that capacity participated as a judge (in a previous judicial position), counsel, advisor, or material witness concerning the proceeding or has expressed an opinion concerning the merits of the particular case in controversy

The only way that Justice Thomas would be required to recuse himself under this canon would be if his wife has a fiduciary interest of some kind in the outcome of the litigation or if she falls under one of the provisions of subsection (d). The fact that she may be affiliated with a Tea Party group that has taken a position on the Affordable Care Act is not, in and of itself, sufficient to meet the requirements of Canon 3(C)(1), and anyone with a modicum of training in legal ethics would know that.

But, this isn’t about legal ethics, this is about politics:

The House Democrats’ letter follows a suggestion made by Sen. Orrin Hatch (R-Utah) last week that Supreme Court Justice Elana Kagan should recuse herself from any consideration of the health care law’s constitutionality because of her previous position as U.S. Solicitor General.

“I think that Kagan, who was the solicitor general at the time this was all done, probably should recuse herself, which means it might not be resolved by the Supreme Court,” Hatch told Fox News last week. “That means the lower court decision will be the acting law.”

In other words, in addition to being yet another opportunity to pay the 20 year old “Bash Clarence Thomas” game, Democrats are raising this issue to undercut the suggestion that Elena Kagan might have to recuse herself from any consideration of the Constitutionality of the Affordable Care Act. Kagan’s situation is far different from Thomas’s, and for that I draw your attention to Canon (3)(C)(1):

the judge served as a lawyer in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter, or the judge or lawyer has been a material witness;

Kagan served as Solicitor General during the entire time that the PPACA was being considered by Congress. If, at any point during that time, her office provided legal advice to the White House regarding the Constitutionality of the law being considered, then there’s at least an argument that she should be required to recuse herself. It’s not a slam-dunk argument, but it’s certainly stronger than the phony one that the House Democrats are raising about Thomas.

Thomas is likely to laugh this letter off, but expect the media pressure to continue, and expect Thomas’s (justifiable) decision not to recuse himself to be used to deflect attention from the issues surrounding Kagan.

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. ponce says:

    “But, this isn’t about legal ethics, this is about politics”

    That about sums up Thomas’ entire career on the bench.

    What an embarrassment he is to America.

    In polling news:

    Obama has bounced back to with a point or two of his recent high numbers.

    A majority of Americans now have an unfavorable view of Egypt for some bizarre reason:
    http://www.gallup.com/poll/146003/Americans-Views-Egypt-Sharply-Negative.aspx

    Like or Dislike: Thumb up 0 Thumb down 0

  2. Shorter version of your comment: I don’t like Clarence Thomas’s rulings on the Supreme Court

    Like or Dislike: Thumb up 0 Thumb down 0

  3. Brian says:

    Doug, question:

    If Mrs. Thomas advises a group how to best present the argument to the Court, would that be a legal conflict given Justice Thomas being on the bench? And the question holds for any hypothetical liberal judge/family member advising on cases.

    Like or Dislike: Thumb up 0 Thumb down 0

  4. Brian says:

    To clarify, since reading my own question I see I didn’t make this point:

    If she advises the group on how to present the argument and then that group wins, wouldn’t that substantially benefit her, in that she could use this victory as proof she can get the job done/can win the big cases/etc. and therefore gain more business?

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  5. Brian,

    Then she would be acting in the role of an attorney and the canon may apply. However, none of the groups she is currently affiliated with are involved in the health care reform litigation and, even if they were, arguments in Court are being made by the Attorneys General for the respective states who are parties to the litigation

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  6. jpe says:

    That letter is a farce. I’m a proud liberal, but boooooo!

    Like or Dislike: Thumb up 0 Thumb down 0

  7. sam says:

    Hypothetical:

    What if it were discovered that she had advised one or more of those individuals seeking standing in the state suits on how best to frame their arguments? On how best to show that they had standing?

    (On the record — you’d have to be from the planet Mongo to be unaware of how Justice Thomas will rule if any of the health care reform cases gets to SCOTUS)

    Like or Dislike: Thumb up 0 Thumb down 0

  8. Brian says:

    Thanks. Given that she’s not involved in the health care argument, yeah, seems like a BS argument.

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  9. @Sam,

    There are no individual litigants in the state suits

    Like or Dislike: Thumb up 0 Thumb down 0

  10. sam says:

    “There are no individual litigants in the state suits”

    You’re wrong about that, Dave. I sent Kevin Walsh an email asking if the subject matter jurisdiction problem he pointed out in Judge Hudson’s opinion also infected Judge Vinson’s. He was kind enough to reply:

    The short answer is that Judge Vinson’s analysis of the justiciability of Idaho and Utah’s challenge to the individual mandate is wrong for the reasons I set out in my essay. But an analysis of what effect that error has is more involved, because the states do have standing to challenge other parts of the law (and they raised such challenges), and because the private plaintiffs’ standing is on firmer ground as well. Whereas the defects of the Virginia case straightforwardly require dismissal in that case, there are many other factors that must be considered in determining the consequences of these defects for Florida v. HHS.

    If your interesting in seeing Prof. Walsh’s paper on the lack of subject matter jurisdiction in Judge Hudon’s Florida decision, here’s the link: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1748550

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  11. sam says:

    Sorry, got the Vinson/Hudson thing flipped. The paper show why Virginia’s suit should be thrown out, not the Florida suit.

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  12. Dodd says:

    Shorter version of your comment: I don’t like Clarence Thomas’s rulings on the Supreme Court

    Even shorter version: Clarence Thomas is conservative.

    Like or Dislike: Thumb up 0 Thumb down 0

  13. TheColourfield says:

    Shorter Doug on anything related to Clarence Thomas

    ” I don’t care what Clarence and Ginny do or say, they are beyond reproach”

    You have a blind spot a mile wide with Thomas.

    Like or Dislike: Thumb up 0 Thumb down 0

  14. ponce says:

    “I don’t like Clarence Thomas’s rulings on the Supreme Court”

    It’s not just that, his methods are incurious and wingnut robotic.

    I could write a fairly accurate A.I. to replace him in a couple hours.

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  15. steve says:

    I will disagree with you Doug. I think that this transcends Thomas. If judges want to appear impartial they should attempt to look impartial. If a spouse wants to enter politics or work as a lobbyist, they should step down. Secondarily, they could recuse themselves from any judgment with political shadings, but that is not very practical anymore. I think it unfortunate that the legal profession is far removed from responsible behavior, that they have no idea how they are viewed, that they place their personal desires above their profession. Why dont we just have the court give up their black robes and wear red and blue? Why even go through the farce of impartiality?

    Steve

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  16. Herb says:

    “Democrats are raising this issue to undercut the suggestion that Elena Kagan might have to recuse herself from any consideration of the Constitutionality of the Affordable Care Act. Kagan’s situation is far different”

    Right……this whole thing is tit-for-tat politics. Having failed to stop ACA politically, opponents are now trying to do it through the courts. In order to up their chances of success they want Elena Kagan to recuse herself. In order for ACA supporters to up their chances, they now want Thomas to recuse himself too.

    So when you write “this isn’t about legal ethics, this is about politics,” you’re absolutely right. Indeed the whole ACA fight isn’t about legal ethics (or even constitutionality) but….you guessed it….politics.

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  17. mantis says:

    Thomas’s opinion on the Commerce clause is well known and pretty consistent. Does anyone doubt what his decision will be, regardless of his wife’s activities?

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  18. tom p says:

    “Even shorter version: Clarence Thomas is conservative.”

    Even shorter short version: “Clarence Thomas is an idiot.”

    I have a question: Has Clarence Thomas EVER written a majority opinion? A quick google turned up zip, but even I have a hard time beleiving that.

    Is there a lawyer out there who can answer this question? Or do even the conservative members of the court find him to be such a hack that they do not trust him to write for the majority?

    ps: concurring opinions do not count.

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  19. PD Shaw says:

    I believe it’s an actionable civil rights lawsuit to discriminate against a person because of the identity of their spouse.

    That’s not to say that ethics may require a higher standard, or merely asking the Justice step down has the force of law. But it does suggest that we are running up against what I would call liberal precepts that an individual, no matter whom they are married to, should be accorded the respect and dignity of individual thought from their spouse.

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  20. PD Shaw says:

    tom p, Clarence Thomas writes majority opinions, my mind escapes me on one I read recently, but I believe it was a unanimous decision. I think people tend to think there are more 5-4 decisions than there really are. There are a lot more 9-0 and 7-2 decisions to go around.

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  21. sam says:

    ” Has Clarence Thomas EVER written a majority opinion? ”

    Here’s one, I believe: United States v. Bajakajian, 524 U.S. 321, 324 (1998).

    Like or Dislike: Thumb up 0 Thumb down 0

  22. Robert Bell says:

    Doug: I read this fragment to imply that his wife needn’t be acting as a fiduciary, just that she have a financial interest …

    “the judge knows that the judge, individually or as a fiduciary, or the judge’s spouse or minor child residing in the judge’s household, has a financial interest in the subject matter in controversy “

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  23. PD Shaw says:

    The Scotusblog stats for last session are that Thomas authored as many opinions as Stevens, which was four. The most was seven.

    http://www.scotusblog.com/wp-content/uploads/2010/06/Preliminary-Stats-OT09_061110-3.pdf

    One doesn’t need to be a lawyer to figure this out; one must merely care,

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  24. skippy says:

    1994 the Supreme Court ruled In 1994, the U.S. Supreme Court held that “Disqualification is required if an objective observer would entertain reasonable questions about the judge’s impartiality. If a judge’s attitude or state of mind leads a detached observer to conclude that a fair and impartial hearing is unlikely, the judge must be disqualified.” [Emphasis added]. Liteky v. U.S., 114 S.Ct. 1147, 1162 (1994).

    So a judge should not rule on any trial where it could have the appearance of bias, even if no bias is provable, or event existent. I think having a lobbyist for a wife and hiding political income could qualify.

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  25. PD Shaw says:

    I’m sorry, I misstated Thomas’ opinions. Here are ScotusBLog’s final stats for number of opinions from last session:

    Ginsburg: 9
    Breyer: 9

    Roberts: 8
    Scalia: 8
    Kennedy: 8
    Thomas: 8
    Alito: 8
    Sotamayor: 8

    Stevens: 6

    http://www.scotusblog.com/wp-content/uploads/2010/07/Final-Stats-OT09-0707101.pdf

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  26. Rock says:

    Congress should apply conflict of interest standards to themselves before telling anyone to recuse or disqualify themselves from anything. “Lead by example.”

    Like or Dislike: Thumb up 0 Thumb down 0

  27. James Joyner says:

    Tom P: “Has Clarence Thomas EVER written a majority opinion? A quick google turned up zip….”

    Googling “opinions by clarence thomas” gave me this alphabetical list from Cornell Law as the #1 result. The answer:

    14 PENN PLAZA LLC, ET AL. v. PYETT, STEVEN, ET AL. , , 04/01/09
    AETNA HEALTH INC., ETC. v. DAVILA, JUAN , 542 U.S. 200 (2004), 06/21/04
    ALASKA v. NATIVE VILLAGE OF VENETIETRIBAL GOVERNMENT , 522 U.S. 520 (1998), 02/25/98
    ALI, ABDUS-SHAHID M. S. v. FED. BUREAU OF PRISONS, ET AL. , , 01/22/08
    ANDERSON, DIRECTOR, CALIFORNIA DEPARTMENT OF SOCIAL SERVICES, et al. v. EDWARDS, guardian ad litem for EDWARDS, et al. , 514 U.S. 143 (1995), 03/22/95
    ASHCROFT, ATTY. GEN. v. ACLU, ET AL. , 535 U.S. 564 (2002), 05/13/02
    ASTRUE, COMM’R, SOCIAL SEC. v. RATLIFF, CATHERINE G. , , 06/14/10
    ATLANTIC SOUNDING CO., INC. v. TOWNSEND, EDGAR L. , , 06/25/09
    AZ DEPT. OF REVENUE v. BLAZE CONSTR. CO. , 526 U.S. 32 (1999), 03/02/99
    BARAL, DAVID H. v. UNITED STATES , 528 U.S. 431 (2000), 02/22/00
    BARNHART, COMMR, SOC SEC v. SIGMON COAL CO., ET AL. , 534 U.S. 438 (2002), 02/19/02
    BD. OF ED., POTTAWATOMIE CTY v. EARLS, LINDSAY, ET AL. , 536 U.S. 822 (2002), 06/27/02
    BEARD, SEC., PA DOC, ET AL. v. BANKS, GEORGE E. , 542 U.S. 406 (2004), 06/24/04
    BECK, ROBERT A. v. PRUPIS, ROBERT M., ET AL. , 529 U.S. 494 (2000), 00/00/00
    BLOATE, TAYLOR J. v. UNITED STATES , , 03/08/10
    BOGAN v. SCOTT-HARRIS , 523 U.S. 44 (1998), 03/03/98
    BOWLES, KEITH v. RUSSELL, WARDEN , , 06/14/07
    BRIDGE, JOHN, ET AL. v. PHOENIX BOND & INDEMNITY, ET AL. , , 06/09/08
    CALIFORNIA DEPARTMENT OF CORRECTIONS et al. v. MORALES , 514 U.S. 499 (1995), 04/25/95
    CALIFORNIA DIVISION OF LABOR STANDARDS ENFORCEMENT et al. v. DILLINGHAM CONSTRUCTION, N. A., INC., et al. , 519 U.S. 316 (1997), 02/18/97
    CARCIERI, GOV. OF RI, ET AL. v. KEMPTHORNE, SEC. OF INTERIOR , , 02/24/09
    CAREY, WARDEN v. MUSLADIN, MATHEW , 549 U.S. 70 (2006), 12/11/06
    CARLSBAD TECHNOLOGY, INC. v. HIF BIO, INC., ET AL. , , 05/04/09
    CARTER, FLOYD J. v. UNITED STATES , 530 U.S. 255 (2000), 06/12/00
    CASS COUNTY v. LEECH LAKE BAND OFCHIPPEWA INDIANS , 524 U.S. 103 (1998), 06/08/98
    CHAVEZ, BEN v. MARTINEZ, OLIVERIO , 538 U.S. 760 (2003), 05/27/03
    CHRISTENSEN, EDWARD, ET AL. v. HARRIS CTY., TX, ET AL. , 529 U.S. 576 (2000), 05/01/00
    CLINGMAN, SEC., OK ELECTION BD. v. BEAVER, ANDREA L., ET AL. , 544 U.S. 581 (2005), 05/23/05
    CONSOLIDATED RAIL CORPORATION v. GOTTSHALL , 512 U.S. 532 (1994), 06/24/94
    COOPER INDUSTRIES, INC. v. AVIALL SERVICES, INC. , 543 U.S. 157 (2004), 12/13/04
    CUELLAR, HUMBERTO F. R. v. UNITED STATES , , 06/02/08
    CUNNINGHAM, TERESA v. HAMILTON COUNTY , 527 U.S. 198 (1999), 06/14/99
    DELAWARE v. NEW YORK , 507 U.S. 490 (1993), 03/30/93
    DEPT. OF TRANSPORTATION, ET AL. v. PUBLIC CITIZEN, ET AL. , 541 U.S. 752 (2004), 06/07/04
    DESERT PALACE, INC. v. COSTA, CATHARINA F. , 539 U.S. 90 (2003), 06/09/03
    DIR. OF REVENUE OF MO v. CoBANK ACB , 531 U.S. 316 (2001), 02/20/01
    DISTRICT OF COLUMBIA et al. v. GREATER , 506 U.S. 125 (1992), 12/14/92
    DOOLEY v. KOREAN AIR LINES CO. , 524 U.S. 116 (1998), 06/08/98
    eBAY INC., ET AL. v. MERcEXCHANGE, L.L.C. , 547 U.S. 388 (2006), 05/15/06
    EGELHOFF, DONNA R. v. EGELHOFF, SAMANTHA, ET AL. , 532 U.S. 141 (2001), 03/21/01
    ENTERGY LOUISIANA, INC. v. LOUISIANA PUBLIC SERV. COMM. , 539 U.S. 39 (2003), 06/02/03
    EXXON CO., U. S. A., et al. v. SOFEC, INC., et al. , 517 U.S. 830 (1996), 06/10/96
    FARRAR et al., COADMINISTRATORS OF ESTATE OF FARRAR, DECEASED v. HOBBY , 506 U.S. 103 (1992), 12/14/92
    FED. MARITIME COMM’N v. SC STATE PORTS AUTHORITY , 535 U.S. 743 (2002), 05/28/02
    FEDERAL COMMUNICATIONS COMMISSION et al. v. BEACH COMMUNICATIONS, INC., et al. , 508 U.S. 307 (1993), 06/01/93
    FEDERAL DEPOSIT INSURANCE CORPORATION v. MEYER , 510 U.S. 471 (1994), 02/23/94
    FELTNER v. COLUMBIA PICTURES TELEVISION, INC. , 523 U.S. 340 (1998), 03/31/98
    FL DEPT. OF REVENUE v. PICCADILLY CAFETERIAS, INC. , , 06/16/08
    FLORIDA v. WHITE, TYVESSEL TYVORUS , 526 U.S. 559 (1999), 05/17/99
    FREIGHTLINER CORP. et al. v. MYRICK et al. , 514 U.S. 280 (1995), 04/18/95
    GITLITZ, D., ET UX., ET AL. v. CIR , 531 U.S. 206 (2001), 01/09/01
    GODINEZ, WARDEN v. MORAN , 509 U.S. 389 (1993), 06/24/93
    GOOD NEWS CLUB, ET AL. v. MILFORD CENTRAL SCHOOL , 533 U.S. 98 (2001), 06/11/01
    GRAHAM COUNTY WATER DISTRICT v. U. S., ex rel. WILSON , 545 U.S. 409 (2005), 06/20/05
    GRANITE ROCK COMPANY v. INT’L BHD. OF TEAMSTERS, ET AL. , , 06/24/10
    GROSS, JACK v. FBL FINANCIAL SERVICES, INC. , , 06/18/09
    HARDT, BRIDGET v. RELIANCE STANDARD LIFE INS. , , 05/24/10
    HARPER et al. v. VIRGINIA DEPARTMENT OF TAXATION , 509 U.S. 86 (1993), 06/18/93
    HARRIS TRUST & SAVINGS BANK v. SALOMON BROS., INC., ET AL. , 530 U.S. 238 (2000), 06/12/00
    HOPKINS v. REEVES , 524 U.S. 88 (1998), 06/08/98
    HOUSEHOLD CREDIT SERVICES v. PFENNIG, SHARON R. , 541 U.S. 232 (2004), 04/21/04
    HUGHES AIRCRAFT CO., ET AL. v. JACOBSON, STANLEY, ET AL. , 525 U.S. 432 (1999), 01/25/99
    HUNT, GOV. OF NC, ET AL. v. CROMARTIE, MARTIN, ET AL. , 526 U.S. 541 (1999), 05/17/99
    J.E.M. AG SUPPLY, ET AL. v. PIONEER HI-BRED INTL. , 534 U.S. 124 (2001), 12/10/01
    JIMENEZ, CARLOS v. QUARTERMAN, DIR., TX DOC , , 01/13/09
    JONES, LOUIS v. UNITED STATES , 527 U.S. 373 (1999), 06/21/99
    KANSAS v. HENDRICKS , 521 U.S. 346 (1997), 06/23/97
    KANSAS v. MARSH, MICHAEL L. , 548 U.S. 163 (2006), 06/26/06
    KNOWLES, WARDEN v. MIRZAYANCE, ALEXANDRE , , 03/24/09
    LAWRENCE, GARY v. FLORIDA , 549 U.S. 327 (2007), 02/20/07
    LOCKHEED CORP. et al. v. SPINK , 517 U.S. 882 (1996), 06/10/96
    MAGWOOD, BILLY J. v. CULLIVER, WARDEN, ET AL. , , 06/24/10
    MATSUSHITA ELECTRIC INDUSTRIAL CO., LTD., et al. v. EPSTEIN , 516 U.S. 367 (1996), 02/27/96
    MELENDEZ v. UNITED STATES , 518 U.S. 120 (1996), 06/17/96
    MITCHELL, GUY, ET AL. v. HELMS, MARY L., ET AL. , 530 U.S. 793 (2000), 06/28/00
    MOYLAN, ATT’Y GEN. OF GUAM v. CAMACHO, GOV. OF GUAM , 549 U.S. 483 (2007), 03/27/07
    NAT’L CABLE & TELECOMM. ASSN. v. BRAND X INTERNET SERVICES , 545 U.S. 967 (2005), 06/27/05
    NATIONAL CREDIT UNION ADMIN. v. FIRST NAT.BANK & TRUST CO. , 522 U.S. 479 (1998), 02/25/98
    NATIONAL PRIVATE TRUCK COUNCIL, INC., et al. v. OKLAHOMA TAX COMMISSION et al. , 515 U.S. 582 (1995), 06/19/95
    NATL. PARK HOSP. ASSN. v. DEPT. OF THE INTERIOR, ET AL. , 538 U.S. 803 (2003), 05/27/03
    NATL. RR PASSENGER CORP. v. MORGAN, ABNER , 536 U.S. 101 (2002), 06/10/02
    NEBRASKA DEPARTMENT OF REVENUE v. LOEWENSTEIN , 513 U.S. 123 (1994), 12/12/94
    NOBELMAN et ux. v. AMERICAN SAVINGS BANK , 508 U.S. 324 (1993), 06/01/93
    NORFOLK & WESTERN RAILWAY CO. v. HILES , 516 U.S. 400 (1996), 02/27/96
    NORTHEASTERN FLORIDA CHAPTER OF THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA v. CITY OF JACKSONVILLE, , 508 U.S. 656 (1993), 06/14/93
    Northern Ins. Co. of New York v. CHATHAM COUNTY, GA , 547 U.S. 189 (2006), 04/25/06
    O’DELL v. NETHERLAND, WARDEN, et al. , 521 U.S. 151 (1997), 06/19/97
    OLYMPIC AIRWAYS v. HUSAIN, RUBINA, ETC., ET AL. , 540 U.S. 644 (2004), 02/24/04
    OREGON WASTE SYSTEMS, INC. v. DEPARTMENT OF ENVIRONMENTAL QUALITY OF THE , 511 U.S. 93 (1994), 04/04/94
    ORFF, FRANCIS A., ET AL. v. UNITED STATES, ET AL. , 545 U.S. 596 (2005), 06/23/05
    PASQUANTINO, DAVID B., ET AL. v. UNITED STATES , 544 U.S. 349 (2005), 04/26/05
    PEACOCK v. THOMAS , 516 U.S. 349 (1996), 02/21/96
    Pennsylvania Bd. of Probation and Parole v. Scott , 524 U.S. 357 (1998), 06/22/98
    PERMANENT MISSION ETC., ET AL. v. NEW YORK, NY , , 06/14/07
    PIERCE COUNTY, WA v. GUILLEN, IGNACIO, ET AL. , 537 U.S. 129 (2003), 01/14/03
    PLILER, WARDEN v. FORD, RICHARD H. , 542 U.S. 225 (2004), 06/21/04
    POLLARD, SHARON B. v. E. I. DuPONT de NEMOURS , 532 U.S. 843 (2001), 06/04/01
    QUANTA COMPUTER, INC., ET AL. v. LG ELECTRONICS, INC. , , 06/09/08
    RAKE et al. v. WADE, TRUSTEE , 508 U.S. 464 (1993), 06/07/93
    RAYTHEON CO. v. HERNANDEZ, JOEL , 540 U.S. 44 (2003), 12/02/03
    REED ELSEVIER, INC., ET AL. v. MUCHNICK, IRVIN, ET AL. , , 03/02/10
    ROBERTSON, CHIEF, UNITED STATES FOREST SERVICE, et al. v. SEATTLE AUDUBON SOCIETY , 503 U.S. 429 (1992), 03/25/92
    ROBINSON v. SHELL OIL CO. , 519 U.S. 337 (1997), 02/18/97
    ROUSEY, RICHARD G., ET UX. v. JACOWAY, JILL R. , 544 U.S. 320 (2005), 04/04/05
    RUBIN, SECRETARY OF THE TREASURY v. COORS BREWING CO. , 514 U.S. 476 (1995), 04/19/95
    SCHRIRO, DIR., AZ DOC v. LANDRIGAN, JEFFREY T. , , 05/14/07
    SCHWAB, WILLIAM G. v. REILLY, NADEJDA , , 06/17/10
    SHANNON v. UNITED STATES , 512 U.S. 573 (1994), 06/24/94
    SHAW, ROBERT, ET AL. v. MURPHY, KEVIN , 532 U.S. 223 (2001), 04/18/01
    SIMS, JUATASSA v. APFEL, COMM’R, SOCIAL SEC. , 530 U.S. 103 (2000), 06/05/00
    SMTIH, WARDEN v. ROBBINS, LEE , 528 U.S. 259 (2000), 01/19/00
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  28. Steve Verdon says:

    tom p.,

    Maybe you should reconsider who the idiot is. :p

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  29. pylon says:

    Doug, you are missing the point of the letter, which is not about the mandatory recusal under the Canon you cite. It’s about voluntary recusal, which is on the basis of avoiding even the appearance of impropriety or impartiality.

    That’s a whole different set of laws, mainly common law decisions.

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  30. pylon says:
  31. Boyd says:

    Then there’s the position that the canon cited doesn’t apply to Supreme Court Justices, as Congress has no jurisdiction to impose their will on another branch of government.

    IANAL, so I have no freakin’ idea, but the argument is persuasive to a layman.

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  32. sam says:

    “Congress has no jurisdiction to impose their will on another branch of government”

    Technically not true. Congress can limit the jurisdiction of the federal courts. Article 3, Section 2 provides that the Supreme Court has original jurisdiction in cases affecting ambassadors, ministers and consuls, and also in those controversies which are subject to federal judicial power because at least one state is a party. In other cases, the Supreme Court has only appellate jurisdiction, which may be regulated by the Congress. From time to time back in the 60s-70s one would hear a lot of right-wing yelps to limit the Court’s appellate jurisdiction so as to prevent cases involving things the right hated from reaching the Supreme Court. They’re still at it. The National Organization for Marriage’s Brian Brown:

    Ultimately if this Perry vs Schwarzenegger case out of California [overturning the anti-gay marriage Propostion 8] goes to the Supreme Court – and I’m confident that we will win at the Supreme Court – but if we were to lose and if the Supreme Court was to force same-sex marriage on, for example, Texas or Alabama or states that have voted by something like seventy-five percent to support marriage as a union of a man and woman and you have the US Supreme Court throwing out the vote of these states, I think you’re going to have a strong movement for a federal marriage amendment. And that would also be a very clear sign to the courts that they are bound by the law and they don’t have the right to simply put into law their own personal preferences.

    You also have under Article III in the Constitution the idea that Congress could limit the appellate jurisdiction of some of these federal courts, so that’s another way in which, that’s already in our law, that Congress could limit the ability of the federal courts to force same-sex marriage on the rest of the country, or any other issue on which the court’s overstepping its bounds.

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  33. jpe says:

    @ Sam: true, but not really on point. Congress’s authority over the court is limited to that jurisdictional question. They couldn’t impose recusal standards on the court.

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  34. sam says:

    Right. But I was responding specifically to Boyd’s claim re Congress’s lack of ability to “impose its will” etc.

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  35. Boyd says:

    First, it’s not my claim. I’ve heard it elsewhere, and I merely brought it up (somewhat late) for discussion.

    Secondly, while I didn’t specify, I didn’t bring up the point about Congress imposing its will on the Supreme Court regarding some non sequitur. I was mentioning this in the context of its supposed ability to force a Justice to recuse himself, not jurisdictional matters.

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  36. sam says:

    Whatever. I will say this, though, about Justice Thomas. I don’t like his jurisprudence, I don’t like his theory of constituitional interpretation, but as far as “conservative” Justices go, he’s got more judicial integrity than any of the others by a long shot. You read an opinion with Scalia in the majority and Thomas in minority, and you think of that exchange between Emerson and Thoreau, when Thoreau was tossed in the pokey for refusing to pay his poll tax.

    Emerson: Well, Henry, what are you doing in there?

    Thoreau: Well, Waldo, what are you doing out there?

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  37. [...] Today, Megan McArdle of the Atlantic reprints excerpts from a recent post by Doug Mataconis at the Outside the Beltway blog, in which Mataconis explains why Justice Thomas is unlikely to recuse himself.  Instead, [...]

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  38. [...] Today, Megan McArdle of the Atlantic reprints excerpts from a recent post by Doug Mataconis at the Outside the Beltway blog, in which Mataconis explains why Justice Thomas is unlikely to recuse himself.  Instead, [...]

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