From the right and left, Washington is awash in demands that two Supreme Court justices recuse themselves from this spring?s review of the health law.
The requests, from politicians and advocates but not from the parties to the lawsuit itself, aren?t likely to have any effect on the justices, Elena Kagan and Clarence Thomas. But by injecting questions about fairness and propriety, the recusal fight could shape how the public views the ruling ? expected in June, right in the midst of the presidential campaign.
Continue ReadingSome legal experts worry that these skirmishes may set up the losing side to try to undermine and discredit the high court?s decision, particularly if it?s a 5-4 ruling. If one vote by a justice is perceived as ?ethically questionable? by a segment of the public, questions and controversies may fester, said Russell Wheeler, an expert on the courts at the Brookings Institution.
The Supreme Court was never going to have the last word on the 2010 health law. A ruling won?t stop the politicking, the repeal votes or the funding fights. But the court is supposed to be the last word on whether the law is constitutional. In this case, it could just be more fuel on a political fire.
?The recusal demands, by and large, are not about good government concerns or conflict of interest,? said Wheeler. ?It?s pretty obviously a tactic, a Hail Mary pass to see if Thomas or Kagan will disqualify themselves. And it?s not likely.?
The right wants Kagan to remove herself because she was solicitor general in the Obama administration as the health law was being enacted and legal strategies contemplated ? although not necessarily by her. The left wants Thomas to step down because of his wife?s anti-health law activities.
Neither justice has given any indication that they?ll step aside, and a bunch of angry bloggers (or letter-writing senators) can?t make them. If both recused, chances are they would cancel each other out in the final vote ? but not necessarily in the internal court deliberations.
But throwing the court into the political caldron of health care ? a move that has a good chance of raising doubts about the legitimacy of the ruling ? worries some scholars of the court. And that prospect arises as the court, like other government institutions, has lost some public trust.
An October Gallup Poll found that only 46 percent of those surveyed had ?confidence? in the court. That?s a 15-percentage-point slide in two years ? not the lowest rating Gallup has found, but close to it ? and even lower than when President George W. Bush took office after the highly controversial Bush v. Gore Supreme Court recount ruling.
?I believe that if the court had its druthers, it would prefer not to decide cases in the bright hot spotlight of the political stage,? said Stephen Wermiel, a court expert at American University?s Washington College of Law. ?But the timing is what it is.?
?It?s an unusual ? not unprecedented but unusual ? circumstance in which the court is going to find itself in one of the hottest political issues in the middle of a political campaign in which [its] decision may make a significant contribution in how the campaign plays out,? he added.
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