In an attempt to rig the Supreme Court and ensure that the Affordable Care Act will be struck down, high ranking members of the House and Senate GOP — including Senate Minority Leader Mitch McConnell (R-KY) and House Judiciary Chair Lamar Smith (R-TX) — have made a series of increasingly improbable claims that Justice Elena Kagan must recuse herself from the lawsuit challenging health reform. This morning, however, George W. Bush’s former Attorney General Michael Mukasey puts these ridiculous claims in their place:

The [law] that potentially relates to Justice Kagan requires disqualification “[w]here [the Justice] has served in governmental employment and in such capacity participated as counsel [or] adviser concerning the proceeding or expressed an opinion concerning the merits of the particular case or controversy.” “Proceeding” is defined to include all stages of the relevant litigation.

In order to run afoul of that provision, Justice Kagan herself would have had to participate in her official capacity as counsel or adviser in the case at any stage, or expressed an opinion in her official capacity about the merits. Asked during her confirmation proceedings whether she had done so, she said no. Absent evidence to the contrary, there is no reason not to credit that denial. Statements of opinion to friends or former colleagues do not count here.

Mukasey’s op-ed also rejects calls from several progressive lawmakers for Justice Thomas to recuse himself from this case, and Mukasey is right that there is not currently any public evidence justifying Thomas’ recusal. Despite the many, many ethical issues surrounding Justice Thomas, no one has yet uncovered evidence that Thomas’ family has a current financial stake in the outcome of this litigation — although Justice Thomas’ wife did once solicit lobbying clients that could potentially raise recusal issues for her husband.

Just three months after Romney proclaimed that “corporations are people,” he has pledged to ensure that the Supreme Court will continue to share this delusion. During editorial board meeting yesterday, Romney promised that if he is elected, he will model his Supreme Court picks after corporate America’s most favorite justices:

Republican presidential candidate Mitt Romney said if he had the opportunity to appoint a Supreme Court justice he or she would be in the mold of Antonin Scalia, Clarence Thomas, Samuel Alito and Chief Justice John Roberts.

“Their approach is the approach I would encourage,” he said. “I would try to find those who would follow the Constitution.

Setting aside the obvious tension between Romney’s promise to appoint justices like Roberts, Scalia, Thomas, or Alito and his promise to appoint justices who will “follow the Constitution,” it’s important to note exactly what Romney is endorsing by supporting these four justices:

• More Corporate Money In Elections: Every single one of Romney’s model justices were in the majority in Citizens United. That means that every single one of them believes that wealthy corporations should have a nearly unlimited power to buy and sell American elections. Every single one of them also voted to undermine public financing laws in a way that eviscerates candidates without well-moneyed backers’ ability to compete in elections.
• Judges For Sale: Every single one of Romney’s model justices voted in Caperton v. Massey to allow a wealthy coal CEO to pay $3 million to elect a sympathetic justice to a state supreme court in order to stack that court with jurists who would overturn a $50 million verdict against his company.
• Corporate-Owned Courts: Every single one of Romney’s model justices voted to give corporations a nearly unlimited power to force workers and consumers into a privatized, corporate-run arbitration system that overwhelming favors corporations. Under their vision, real courts run by neutral judges are off limits to anyone a clever corporation does business with.
• Dividing And Conquering Ordinary Americans: Every single one of Romney’s model justices voted in AT&T Mobility v. Concepcion to allow corporations to strip their workers and consumers of their ability to bring class action lawsuits. Because of this decision, corporations now have a nearly unlimited power to cheat the people who do business with them — so long as they only do it a few dollars at a time.
• Corporate Immunity To The Law: Every single one of Romney’s model justices voted to give generic drug makers immunity to key state laws after one of their drugs caused a condition called tardive dyskinesia in many of the people who took it. Tardive dyskinesia is an horrific neurological condition that causes sometimes crippling, uncontrollable bodily movements, often in the face:

Roberts, Scalia, Thomas and Alito envision an America where elections are decided by the highest bidder, where corporations control the courts, and where ordinary Americans have to beg corporate permission before they can hold the wealthiest companies accountable to the law. And if Mitt Romney gets his way, there will be even more of them on the Supreme Court.

It was no doubt inevitable when news broke that GOP presidential candidate Herman Cain was once accused of sexual harassment that his defenders would rush to compare him to Justice Clarence Thomas. Both men are black! And conservative! And they were once accused of doing vaguely similar things! Clearly this must be a liberal plot:

Ann Coulter said it first, in a Sunday night interview with Fox News when the Politico story first broke: “This is a high-tech lynching.”

“In the eyes of the liberal media, Herman Cain is just another uppity black American who has had the audacity to leave the liberal plantation. So they must destroy him, just as they tried destroying Clarence Thomas,” wrote Brent Bozell of the Media Research Center.

Rush Limbaugh also lashed out at the news media for pursuing “the ugliest racial stereotypes they can to attack a black conservative.” He went on to say on his radio show: “This is about blacks and Hispanics getting uppity.”

The allegations against Cain, which have yet to be proven or disproven, obviously have nothing to do with Justice Thomas. It is impossible to imagine that when two women accused Cain of sexual harassment in the 1990s, they envisioned Cain’s future presidential campaign and hoped to scuttle it by reenacting the Thomas scandal with themselves in the role of Anita Hill. Yet, while the similar allegations against the two men are merely a coincidence, Cain and Thomas do share one very important trait in common — their utter disregard for the Constitution.

Upon joining the Supreme Court, Thomas embarked on an Ahab-like quest to declare most of the Twentieth Century unconstitutional. In three separate cases — U.S. v. Lopez, U.S. v. Morrison, and Gonzales v. Raich — Thomas claimed that the constitutional basis of national labor laws and most national civil rights laws is “at odds with the constitutional design.” It’s difficult to count how many laws would simply cease to exist under Thomas’ vision of the law, but a short list includes the federal ban on workplace discrimination, laws protecting older Americans and Americans with disabilities, the national minimum wage, national child labor laws and the federal ban on whites-only lunch counters.

Stunningly, Cain goes even further in his belief that the Constitution is nothing more than a Tea Party manifesto. Under Cain’s vision of the Constitution, Medicare and Medicaid are also unconstitutional — as are many things that are expressly authorized by the Constitution such as national bankruptcy laws. Cain claims an unconstitutional power to lock his agenda in place permanently once it passes Congress, and his unconstitutional immigration policy seems designed to undermine America’s relations with other nations.

Cain, of course, also named Thomas as a “model” for the kind of justices he would appoint if elected president. Given their shared disdain for the Constitution, there should be little doubt as to why.

Twenty years ago tomorrow, the Senate committed one of its greatest errors of judgment in recent American history — it confirmed Justice Clarence Thomas to the Supreme Court. Thomas’ narrow 52-48 confirmation vote came after a hearing riddled with red flags signaling that this man is unfit for service on the nation’s highest Court. He claimed to have no opinion on Roe v. Wade at statement that was either deliberately deceptive or an unintentional admission that he had though so little about the Constitution that he has no business interpreting it. He advocated a cryptic theory of “natural law” that seemed wholly divorced from the text of the Constitution. And, of course, there was that whole Anita Hill thing.

Yet for all the many, many warning signs that nominee Thomas did not belong on the bench, Justice Thomas has turned out to be far more ideological, far more loyal to discredited constitutional theories, and far more willing to discredit the Supreme Court as an institution than anyone could have anticipated. Thomas accepted lavish gifts from wealthy benefactors and corporate-aligned interest groups. He refused to recuse himself from cases that one of his benefactors participated in. He unethically attended a political fundraiser hosted by right-wing billionaire Charles Koch, and he illegally omitted hundreds of thousands of dollars of his wife’s income from his financial disclosure forms.

But Thomas’ many, many ethical scandals are the least of Thomas’ problems. Eighty years ago, the Supreme Court was gripped by a libertarian madness which taught that the most basic labor and consumer protections somehow violate the Constitution. At the vanguard of this movement were the “Four Horsemen,” four right-wing justices who consistently and repeatedly opposed President Franklin Roosevelt’s effort to build the foundation of American’s modern regulatory system and social safety net.

By Roosevelt’s second term, however, the Four Horsemen’s stranglehold on the Constitution ended, and was quickly replaced with the modern understanding that national leaders can decide how to regulate matters that “substantially affect interstate commerce.” In three separate cases, United States v. Lopez, United States v. Morrison, and Gonzales v. Raich, Thomas rejected this return to the democratic form of government our Constitution created — and effectively demanded that most of the Twentieth Century be struck down. Although it is tough to count how many essential laws would simply cease to exist under Thomas’ Bizarro Constitution, a short list includes the federal bans on race, gender, age and religious discrimination in the workplace, the Americans with Disabilities Act, national minimum wage overtime laws, and the federal ban on whites-only lunch counters.

Eighty years ago, the modern economy was still young, the world was still unsure how to govern an industrialized nation, and the consequences of Roosevelt’s New Deal were still unknown. For this reason, the Four Horsemen might be forgiven their tragic decision to stand athwart progress demanding that it stop. Clarence Thomas does not have this excuse. He sits on the other side of history with full knowledge that America prospered and grew into to wealthiest, most powerful nation that has ever existed in the decades that followed the Four Horsemen’s defeat. It’s an absolute mystery why he would trade a Constitution that has served us so well for the distorted constitution that served our great-grandparents so poorly.

In an interview with Meet the Press’ David Gregory this morning, GOP presidential frontrunner Herman Cain endorsed Justice Clarence Thomas as a model a President Cain would follow in making appointments to the Supreme Court:

GREGORY: What about the Supreme Court? Who’s your model of the ideal Supreme Court justice who you would appoint?

CAIN: I would say that there are several that I have a lot of respect for. Justice Clarence Thomas is one of them. I believe that Justice Clarence Thomas, despite all of the attacks that he gets from the left, he basically rules and makes his decisions, in my opinion, based upon the Constitution and solid legal thinking. Justice Clarence Thomas is one of my models.

Watch it:

For the record, we on “the left” do not attack Justice Thomas for any reason other than the fact that he is a terrible judge. His record on the Supreme Court is marred by conflicts of interest and other ethical scandals, and he embraces a discredited understanding of the Constitution that would declare everything from child labor laws to the ban on whites only lunch counters unconstitutional.

Thomas accepted lavish gifts from wealthy benefactors and even from corporate-aligned interest groups with business before his Court. Leading conservative donor Harlan Crow, whose company often litigates in federal court, provided $500,000 to allow Thomas’s wife to start a Tea Party group and he once gave Thomas a $19,000 Bible that belonged to Frederick Douglass. The American Enterprise Institute (AEI), a conservative think tank which frequently files briefs in Thomas’ Court, also gave Thomas a $15,000 bust of Abraham Lincoln as a gift. This last gift is particularly egregious because Thomas continued to sit on three cases where AEI filed a brief.

Significantly, a justice was forced to leave the Court for a very similar gifting scandal. In 1969, Justice Abe Fortas resigned in disgrace after the nation learned that he had accepted tens of thousands of dollars worth of gifts from corporate executives and other wealthy benefactors. Justice Thomas, by contrast, remains openly defiant at the mere suggestion that he has done anything wrong.

Nor is Thomas’ taste for expensive gifts his only ethical lapse. Thomas unethically attended a political fundraiser hosted by right-wing billionaire Charles Koch. He illegally omitted hundreds of thousands of dollars of his wife’s income from conservative organizations from his financial disclosure forms. And he has not disclosed whether his wife, a Tea Party lobbyist, is lobbying on any laws that are before his Court — a problem that could potentially raise recusal issues in the Affordable Care Act case.

Sadly, however, Thomas’ many ethical lapses are not even the most disturbing part of his tenure as a justice. In three separate cases — U.S. v. Lopez, U.S. v. Morrison, and Gonzales v. Raich — Thomas claimed that the constitutional basis of national labor laws and most national civil rights laws is “at odds with the constitutional design.” It’s difficult to count how many laws would simply cease to exist under Thomas’ vision of the law, but a short list includes the federal ban on workplace discrimination, laws protecting older Americans and Americans with disabilities, the national minimum wage, national child labor laws and the federal ban on whites-only lunch counters.

Given Cain’s long history of confusing the Constitution with a Tea Party manifesto, it’s not surprising that Cain wants to see more Clarence Thomases on the federal bench — but it is still deeply disturbing. One ethically challenged justice eager to repeal the Twentieth Century is too many.

In a speech on the Senate floor yesterday, Sen. Orrin Hatch (R-UT) compared people who disagree with Justice Antonin Scalia to the Death Eaters, a racist, Ku Klux Klan-like band of terrorists who support the evil Lord Voldemort in the fictional Harry Potter books:

Sen. Orrin Hatch (R-Utah) likened conservative Supreme Court Justice Antonin Scalia to famous fictional character Harry Potter on Wednesday and suggested his liberal detractors were like the “death eaters” depicted in the popular children’s series.

“If this was a Harry Potter movie, liberals would put Justice Scalia on a wanted poster as undesirable number one,” said Hatch. “And yet they just can’t seem to look away. The principles and laws on which he stands are so compelling… that whether you love him or hate him, you simply must deal with him.”

In the seventh Harry Potter book, the “death eaters” refer to Harry Potter as “undesirable number one” and dispense wanted posters bearing his name across the wizarding world.

Watch it:

Despite what Hatch may think, Scalia’s detractors do not actually want to bring about Justice Scalia’s destruction in order to fulfill a prophecy that will enable the unchecked reign of our Dark Lord. Indeed, even if we were to raise a magical army of evil wizards bent on destroying conservative justices, it is unclear why we would name Justice Scalia our leading enemy.

Unlike Justice Clarence Thomas, Justice Scalia does not believe that the national minimum wage, overtime and child labor laws violate the Constitution. Nor has Scalia shown any interest in striking down the federal ban on whites-only lunch counters — a law that would be unconstitutional under Thomas’ understanding of our founding document. Indeed, Justice Scalia even wrote an opinion in Gonzales v. Raich which clearly and unambiguously indicates that the Affordable Care Act is constitutional.

None of this is to say that Scalia is a saint. He defends torture and finds little wrong with executing the innocent. His views on gay rights are straight out of the Paleolithic Era, as is his belief that the Constitution does not provide any protection against gender discrimination.

But compared to Justice Thomas, Scalia is hardly the Harry Potter of people who want to do awful things to the Constitution. Scalia isn’t even the Ron Weasley of people who want to do awful things to the Constitution. He’s more like Neville Longbottom.

At a speech to Nebraska law students, Justice Clarence Thomas made a surprising claim — that the Supreme Court has been too activist and should stop second-guessing elected leaders:

[Thomas] told the group that the court is being asked to play too big of a role in the nation’s governance. Currently, he said too many of the difficult decisions are being left to the courts to decide.

“The really hard calls ought to be made by citizens and their political leaders,” Thomas said.

Thomas is, of course, correct that the current Supreme Court has gone out of its way to undermine democracy. Thomas and his four conservative colleagues destroyed meaningful checks on corporate money in politics. They undermined essential workplace protections enacted by democratically elected officials, and they wholeheartedly endorse a privatized, corporate-owned arbitration system which allows powerful corporations to immunize themselves from countless laws.

Moreover, Justice Thomas is by far the worst offender on the Supreme Court. A 2005 Yale study found that Thomas is more likely to strike down an act of Congress than any other member of the Court. Indeed, if given his way, Thomas would return America to an era when fathers competed with their teenaged children for work and African-Americans could legally be excluded from jobs, hotels, and lunch counters:

Congress may regulate activities that “substantially affect interstate commerce.” This “substantial effects” power is the basis of Congress’s authority to make labor laws universal throughout all places of employment.

Yet Justice Clarence Thomas claimed in three separate cases—U.S. v. Lopez, U.S. v. Morrison, and Gonzales v. Raich—that this “substantial effects” test is “at odds with the constitutional design.” It is possible that Thomas’s vision would still allow some limited federal labor regulation—such as a law prohibiting children from becoming railway workers—but anything resembling the essential web of federal laws that protect American workers today would be impossible. [...]

In 1964, the Supreme Court unanimously upheld the federal ban on whites-only lunch counters—once again relying on the “substantial effects” test to do so. For this reason, it is likely the Justice Thomas would strike down this and other federal laws protecting civil rights.

So Thomas’ claim that “the court is being asked to play too big of a role in the nation’s governance” is quite true — and all that Thomas needs to do to fix this problem is to quit the relentless campaign of judicial activism he began the minute he joined the Supreme Court.