Should Clarence Thomas and/or Elena Kagan recuse themselves from the upcoming "ObamaCare" decision

reply to post by Flatfish


Dear Flatfish,

Thank you very much for replying and for bringing up the point about financial interest. That's a line of thought that should be explored as well.

Assume that Obamacare is approved, how is Thomas benefitted (financially or otherwise)? Assume the opposite, what benefit does he get in that case?

His wife will continue to be active for conservative causes, she'll still be getting money, whatever the decision is. Could you explain more about how he benefits?

With respect,
Charles1952

Originally posted by charles1952
reply to post by Flatfish

 

Dear Flatfish,

Thank you very much for replying and for bringing up the point about financial interest. That's a line of thought that should be explored as well.

Assume that Obamacare is approved, how is Thomas benefitted (financially or otherwise)? Assume the opposite, what benefit does he get in that case?

His wife will continue to be active for conservative causes, she'll still be getting money, whatever the decision is. Could you explain more about how he benefits?

With respect,
Charles1952

The statute clearly states that if he knows that "he, ... his spouse or a minor child residing in his household, has a financial interest in the SUBJECT MATTER IN CONTROVERSY..."

Seeing how his wife has already been paid over $680,000.00 advocating for the repeal of "ObamaCare," the very subject coming before the court, it is fairly obvious that she "has a financial interest in the subject matter in controversy." It doesn't say that he must "benefit" from the decision in order to be grounds for recusal.

IMO, The fact that appointments to the SCOTUS are for life, coupled with the fact that their decisions are the "final say" in matters that affect everyone in the nation, mandates that the bar for ethics be placed at a higher standard than any other judicial position in the country. (personally, I would be "For" raising the bar on the other two branches of government as well, namely Congress & POTUS.)

Needless to say, when someone accepts a presidential appointment to the bench, they know full well that along with that lifetime appointment to the bench, comes the requirement to meet a "higher ethical standard." He and his wife should have considered this fact prior to her accepting employment to advocate against legislation that would, more than likely, come before the supreme court.

Anyway, that's my take on it.

Originally posted by The Old American
If one should then they both should, as they both have equal ties to it. It's going to be a 5-4 decision, either for or against. There are some swing votes though. Roberts could pull out something like he did when Roe v. Wade was up for review and say that Rickard v. Filburn is precedent enough to say the mandate is constitutional.

"If one should then they both should" is not a valid argument as each Justice's ties to the "subject matter in question" must be scrutinized on an individual basis.

Furthermore, their ties to the subject matter are far from "equal." One has had $680,000.00+ deposited into his bank account and the other has expressed their opinion in a email to a friend.

The statute regarding the opinions of Justices doesn't bar them from having one, it only mandates that they haven't expressed that opinion in a legal ruling in a case brought before their court. To my knowledge, Elena Kagan has never expressed her personal opinion, with respect to "ObamaCare," in any legal decision she has made.

I'm not familiar with the Justice Roberts situation so I won't comment on that one, at least not yet.

Dear Flatfish,

I'm very grateful to you for holding a serious conversation with me, those don't happen often.

I absolutely agree with you on most of your post. Certainly, ethics in every branch of government need to be higher, I'll stand next to you on that one all day.

I also completely agree with you in your statement of the statute. You have it right and no argument from me.

My only disagreement comes with this small portion of your post:

Seeing how his wife has already been paid over $680,000.00 advocating for the repeal of "ObamaCare," the very subject coming before the court, it is fairly obvious that she "has a financial interest in the subject matter in controversy." It doesn't say that he must "benefit" from the decision in order to be grounds for recusal.

Here's a link to the whole code:Ethics Code

Section (d)(4), about half way down includes the following definition:

(4) "financial interest" means ownership of a legal or equitable interest, however small, or a relationship as director,adviser, or other active participant in the affairs of a party,

This is the reason I take the position that I do. It may not be that it is a good rule, but it appears to me that it is the rule. It doesn't look as though Mrs. Thomas has a financial interest in the case, as "financial interest" is defined by the code.

With respect,
Charles1952

reply to post by charles1952


Well, I'll have to admit that's a very good point that deserves some debate and thanks for the link to the legislation. It's always good to have an adult conversation and for that, I thank you as well.

After reading it, the following question came up in my mind; Does this mean that if Virginia Thomas chooses, (as a career choice) to be a "paid vocal advocate" on issues that are destined to be heard by the supreme court, that a court decision which is favorable to her advocated position won't attract even more business as a paid advocate and future financial gain from other issues that may come before the court?

I mean, once you build a reputation for getting things done, more business naturally comes your way. It just doesn't sit well with me at all. Although it does sound like one helluva lucrative business for the spouses of supreme court justices if it is allowed to continue.

For 10 yrs., I was a trustee appointed to oversee the investments and administration of a $500 million benefit trust fund, (bound by fiduciary responsibility & liability) and any time there was "even the appearance" of conflict of interest, trustees were expected to recuse themselves from voting on the topic in question. Just the idea that a Supreme Court Justice would be held to a lower standard just doesn't seem right, at least not in my book.

reply to post by Flatfish

Dear Flatfish,

I think you're pointing the way to the solution, and I'm prepared to support you all the way.

Just the fact that we're having this discussion indicates there is some question about the propriety of Justice Thomas participating in this case. And yes, I agree that Virginia might be building up a reputation, therefore her potential net income and worth. Good point. So, let's ask the judiciary committee to come up with a better set of ethics rules that remove much of the subjectivity involved in recusals.

We'd grandfather previous behavior, so we don't have to dump Thomas a few months before the decision, and Kagan is safe that way too. Dumping either, or both, now would look a little too political for my tastes. And, of course, congress and regulatory agencies as well (heck, as long as I'm dreaming, dream big).

Flatfish, this has been a rewarding experience for me. Since you have all the money (I'm assuming trustees get paid elebenty million dollars), you can set up the campaign for change and I'll be a loyal foot soldier.

With respect,
Charles1952

Originally posted by charles1952
reply to post by Flatfish

 

Dear Flatfish,

I think you're pointing the way to the solution, and I'm prepared to support you all the way.

Just the fact that we're having this discussion indicates there is some question about the propriety of Justice Thomas participating in this case. And yes, I agree that Virginia might be building up a reputation, therefore her potential net income and worth. Good point. So, let's ask the judiciary committee to come up with a better set of ethics rules that remove much of the subjectivity involved in recusals.

We'd grandfather previous behavior, so we don't have to dump Thomas a few months before the decision, and Kagan is safe that way too. Dumping either, or both, now would look a little too political for my tastes. And, of course, congress and regulatory agencies as well (heck, as long as I'm dreaming, dream big).

Flatfish, this has been a rewarding experience for me. Since you have all the money (I'm assuming trustees get paid elebenty million dollars), you can set up the campaign for change and I'll be a loyal foot soldier.

With respect,
Charles1952

Dear Charles1952,

Despite the fact that we are definitely in agreement on the major points, especially when it comes to judicial ethics reforms, there are a couple of points I'd still like to make. Hope I'm not being too long winded for you.

First: There's an old saying that goes something like this; "Never put off until tomorrow, something that could be done today" and another that goes; "There's no time like the present," both of which IMO are usually good advice. When I see a problem staring me in the face, I see no reason to wait for it to get worse before addressing the cause.

Part of the current problem is the fact that the only person who can force a Supreme Court Justice to recuse, is the Justice himself. Currently, it doesn't matter if there was a unanimous decision by the rest of the bench, even they cannot force another Justice to recuse. Under the current statutes, it's his decision and his alone. The good news is that we are not alone in recognizing the need to reform the judicial ethics codes, check out this article and the following video; yubanet.com...

A federal law, 28 U.S.C. §455, requires all federal judges, including Supreme Court justices, to recuse themselves from any case in which their impartiality "may reasonably be questioned." The statute identifies specific circumstances when a judge must step aside, such as when he or she has a financial interest in any part of subject matter of the case.

The central difficulty of this controversy is the fact that ultimately the only person who will decide whether Clarence Thomas should recuse himself from the cases taken by the Court today is Clarence Thomas himself. Uniquely, the Supreme Court is the only federal judicial body permitted to violate the fundamental tenet of the law that no one should be the sole judge in his or her own case.

Although the recusal statute, and its standards for what constitutes a conflict of interest, applies to the Supreme Court, there currently is no mechanism for review of any justice's decisions, nor is a justice facing scrutiny required to publicly explain the justification for their actions, one way or another.

Secondly: I only wish that your assumption about trustees was correct but, at least in my case, it is not. I served as 1 of 8 labor trustees overseeing 4 separate, multi-employer, not-for-profit union benefit trust funds. Trustees to our funds were reimbursed for travel expenses to and from meetings but we would only receive remuneration, (a day's pay or 8hrs. @ union rates) if and only if, we were not receiving pay from another employer for that day.

No multi-million dollar bonuses for our union trustees, that's more of a for-profit corporate type thing. To do so would cause us to lose our not-for-profit status under the ERISA ACT. Not so much as a free turkey on Thanksgiving.

Furthermore, I was forced into early retirement at age 48 never having earned more than $75,000.00 in a given year. I had 32 yrs. of service at the time, but only because of the fact that I lied about my age and began working when I was 16yrs. old. My wife was a stay-at-home mom, so needless to say, I do not have all the money. On the other hand, I have found during the past 6 yrs., that having the free time to experience my grandchildren is worth more money than I ever could have made working.

Anyway, I really enjoyed the discussion,
Flatfish