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74 Members of Congress Seek Justice Thomas’ Recusal From Affordable Care Act Lawsuits

By Ian Millhiser on February 9, 2011 at 2:43 pm

"74 Members of Congress Seek Justice Thomas’ Recusal From Affordable Care Act Lawsuits"

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Supreme Court spouse Ginni Thomas recently opened a lobbying firm which promises to give “voice to…the tea party movement in the halls of Congress.” The job will likely lead her to lobby in favor of repealing the Affordable Care Act. Meanwhile, conservatives are mounting a nationwide litigation strategy to convince Ginni’s husband to give voice to the tea party movement in the halls of the Supreme Court.

In response to Ginni Thomas’ involvement with groups trying to repeal the Affordable Care Act, 74 Members of Congress signed a letter to Ginni’s husband — Justice Clarence Thomas — pointing out that his wife’s new job could have ethical consequences for him:

As an Associate Justice, you are entrusted with the responsibility to exercise the highest degree of discretion and impartiality when deciding a case. As Members of Congress, we were surprised by recent revelations of your financial ties to leading organizations dedicated to lobbying against the Patient Protection and Affordable Care Act. We write today to respectfully ask that you maintain the integrity of this court and recuse yourself from any deliberations on the constitutionality of this act. [...]

Given these facts, there is a strong conflict between the Thomas household’s financial gain through your spouse’s activities and your role as an Associate Justice of the United States Supreme Court. We urge you to recuse yourself from this case. If the US Supreme Court’s decision is to be viewed as legitimate by the American people, this is the only correct path.

To be fair, the case for Justice Thomas’ recusal could turn on whether his wife is actually being paid to lobby for the Affordable Care Act to be repealed. The federal recusal statute requires Thomas to recuse from any case that could “substantially affect[]” his wife’s finances:

(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

(b) He shall also disqualify himself in the following circumstances: …

(5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person: . . .

(iii) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;

It’s worth noting that conservatives have already interpreted this ethics law in a way that requires Justice Thomas to recuse himself from the health care litigation. After progressive Judge Stephen Reinhardt was assigned to the appellate panel that was to hear a challenge to anti-gay Proposition 8, supporters of the anti-gay law called for Reinhardt to recuse because his wife’s organization advocates against Prop 8.

But, of course, Ginni Thomas used to lead a Tea Party group called Liberty Central which vigorously opposes the Affordable Care Act. Liberty Central even briefly signed Ginni’s name to a memo claiming that the Affordable Care Act is unconstitutional — at least until news reports pointed out the ethical issues her signature raised for her husband. So, by the right’s very same arguments, Justice Thomas must drop out of the health care litigation.

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