Supreme Court Declines to Hear Argument That Justice Kagan Should Recuse Herself From Upcoming ObamaCare Case

The Supreme Court isn't going to debate whether or not Supreme Court Justice Elena Kagan, who served as President Obama's solicitor general during the passage of the 2010 health care overhaul, should recuse herself from hearing an upcoming challenge to the law. Via Politico:

The Supreme Court on Monday denied a request for debate over whether Justice Elena Kagan should recuse herself from the health care reform case due to be argued in March.

Freedom Watch, a group led by Larry Klayman, asked the court for permission to file a brief on Kagan's participation in the case. The court on Monday denied the request without comment, though it did note that Kagan did not participate in the discussion.

Much more from Reason on Kagan here. 

Comments

[Joe M]

Peter, I think double-dipping on the alt-text violates an unspoken H&R rule. It also shows weakness, in that you couldn't figure out which line was better and just used both. We need confident, type A posters to guide us.

[Scoldy the Griefer Troll]

It's good that your priorities are in order.

[Auric Demonocles]

Suderman may now be my favorite staff member. Not only has he progressed to using alt-text, he is making up for others' lack of it (here's looking at you Etkins).

[Sparky]

By Etkins you mean Ekins and Suderman has always used alt-text, it's Sullum who's the slacker.

[Joe M]

Sullum has been dabbling in the alt arts lately, and he's a quick study.

[Auric Demonocles]

Suderman has not always used alt-text. He's the first staff member I harassed about missing alt-text.

[rather]

If Justice Elena Kagan did, SCOTUS will never recover their reputation; she needs to bow out gracefully

[cynical]

Among the right, you mean. I think they already lost favor with the left when they found in favor of Bush vs. Gore.

[rather]

This isn't a right VS. left issue; SCOTUS is losing their justice mystique for all

[curi]

That happened decades ago, rectal.

[curi]

The professional left didn't need Bush v. Gore to maintain its never ending bitching about anything that it doesn't like.

[Joe M]

As for the news itself, I guess it just goes to show that no group is immune to the instinctive "circle the wagons" response to external threats.

[Scoldy the Griefer Troll]

Kagan did not participate in the discussion

And she can still recuse herself.

[curi]

Is that a Notre Dame gargoyle in that picture? Any experts on gothic cathedrals here on H&R?

[Justice Kagan]

Eat it, bitches!

[Special Sauce]

I did not realize Kevin James was a supreme court justice, my bad.

Paul Blart: SCOTUS

[Bones]

I thought it was Chris Kattan.

[bill]

I was about to ask if it was Chris Kattan from an SNL skit.

[Discount Double Choke]

Looks more like Jon Lovitz with hair implants to me.

[JR]

That would explain the man hands too.

[anon]

Lana Kane ain't got shit on Kagan's hands.

[Joy Division]

Recuse, already. Good grief!

[curi]

That's never going to happen. She was chosen because she was a fellow shameless traveler. The law means nothing. Ideological goals are the only things that matters. By any means necessary.

[wareagle]

^^^this. For both sides. The left has squawked similarly about Thomas because of his wife. It stopped being about right/wrong, good/bad long ago; it's all about power, advancing agendas, and controlling the money.

For god's sake, the right is practically giddy about Newt, who practically worships at the altar of FDR. It's the same folks who thought Hillary crazy for channeling her inner Eleanor. Was Eleanor more dangerous than Franklin? It's about agendas, or the perception of agendas.

[Episiarch]

^^^this. For both sides. The left has squawked similarly about Thomas because of his wife.

Yes because being the one who actually did something is the same as being married to someone who did something

And you're a fucking moron for giving that stupid fucking argument any credibility.

[wareagle]

go to hell. Try offering something more than juvenile insults. I didn't say the two were the same; I said both sides value ideological posturing above all else. Your membership in the small mind/small penis brigade is renewed for another term.

[Diomasach]

Apples and oranges. Or mor elike apples and rocks.
Kagan was the Solicitor General for the administration that passed Obamacare. As such, her job was to develop tactics specifically in case the law came before the SCOTUS.

Clarence Thomas' wife was tangenitally involved in an organization that, among other things, opposes Obamacare.

Not even close.

[Mainer]

Politics: A strife of interests masquerading as a contest of principles. The conduct of public affairs for private advantage.

Ambrose Bierce

[curi]

+

[R C Dean]

Her participation means that a 5-4 decision upholding the law (probably the odds-on outcome, at this point) means that one of the most controversial expansions of federal power in at least a generation, probably two, occurred because of a judge with an obvious conflict of interest.

Remember, if she recuses and its 4-4, the individual mandate is struck down. If she votes to uphold on a 5-4 decision, it was her vote, cast unethically, that saved the law.

[anon]

Nah, Kennedy has been leaning far more conservative recently. I have faith damnit!

[Jordan Elliot]

You will be sorely disappointed.

[anon]

I think most will. My expectation is that they won't rule on the mandate because it's not in effect yet.

[R C Dean]

I don't think so. They would have declined to take the case at all, if they were going that way.

They certainly wouldn't have scheduled it for three days of oral arguments.

[anon]

There are various other aspects of the case they can sort out without touching the mandate, which is my primary concern with the legislation.

It just adds up to me. There's no way they'll rule on it during Obama's re-election campaign.

[Evan from Evansville]

Hrm. Jordan Elliot.

Probably a fairly common name.

You wouldn't happen to also be from Evansville, eh?

[Jordan Elliot]

If I am, does that make you hot...?

:seductive stare:

[Evan from Evansville]

I played baseball with a Jordan Elliot. During practice for the all-star team, he was pitching and I catching. [Insert joke.] The ball hit the wrong part of the mitt and broke my thumb.

I didn't say anything and kept catching the whole practice cuz I rightly knew my father would just tell me to suck it up anyway.

The J. Elliot I know was a quarterback for Purdue and is playing semi-pro ball in Canada I think.

And I am...exceptionally hot right now.

[Barely Suppressed Rage]

"A great empire, like a great cake, is most easily diminished at the edges." - Benjamin Franklin

[Tulpa]

Remember, if she recuses and its 4-4, the individual mandate is struck down.

No it isn't. There's a circuit split, so it would be in effect in all districts except one.

[R C Dean]

I'm not so sure, Tulpa. A better Con lawyer than me would have to sort it out, but 4-4 means that the lower court's decision is upheld.

I'm not sure there's any difference between being upheld 5-4 (or 9-0) and being upheld 4-4. Certainly a 9-0 decision upholding a circuit court is binding on the other circuits; why wouldn't a 4-4 decision also be binding on the other circuits?

[anon]

I'm pretty sure it stands 3-2 in lower court rulings. I think the majority opinion is upheld in this situation.

[Tulpa]

I believe there's only one that's overturned, right? Or was there another that overturned only the mandate and not the rest of the law. I don't remember.

But there have been several circuits that upheld the Obamacare law in full. So it probably would stand if the court splits.

[anon]

I think two overturned the mandate, one overturned the entire law, but I'm positive 3 upheld the mandate, so it would stand.

[Rev. Blue Moon]

No, because this case's jurisprudence is coming from the 11th Circuit, which ruled the whole law unconstitutional. The lower court ruling would be affirmed.

[Tulpa]

My (layman's) understanding is that a 4-4 decision is equivalent to no decision at all. ie, it goes back to status quo ante, as if the court had never granted cert.

[JD]

I'm pretty sure a 4-4 split upholds the lower court's decision but creates no binding precedent.

[R C Dean]

That seems to be the idea. I'm not sure how that would work in this case.

You can't say the law is Constitutional in some circuits and not others. You just can't.

I would think that a tie in this case would mean that the statute is struck down. I don't even know if the court could write an opinion that would be binding, or if the Circuit Court opinion would just be promoted, in effect, to a SCOTUS opinion.

[Mo]

If it looks 5-4, someone else will likely jump to reduce the controversy. I would be on Roberts, because then he could write opinion and keep it as limited as possible.

[Rev. Blue Moon]

Remember, if she recuses and its 4-4, the individual mandate is struck down.

Wait, this is coming from the 11th Circuit case? Because a draw means the lower court holding is affirmed, and if it is coming off a decision that held the mandate constitutional...

[anon]

Fantasies of Kagan recusing herself are just that; fantasies.

[CoyoteBlue]

I prefer not to do any fantasizing about Kagen. (no homo)

[manny]

Does anyone have any racy pictures of Kagan besides this?

[Kwanzaa Cake]

Truly she is among the least attractive humans alive today.

[Sotomayor]

And just what am I? I would think a vile Latina would make a better choice for most fugly.

[bringing it on]

FACT: 99 out of 100 Latinas are smoking hot and Sotomayor is the other one.

[Zeb]

If this isn't an incredibly clear case of when someone should recuse herself, then nothing is.

[anon]

Too much at stake for the Obama admin. They'll lean hard on her not to.

[R C Dean]

Hell, this is why they appointed her.

I've never thought for an instant she would recuse. I have no doubt they were pretty overt with her about exactly why she was being appointed at the time.

[anon]

Yeah, I was under the impression that it was pretty clear the reason she was nominated was to uphold Obamacare.

[Tulpa]

This makes no sense. There are hundreds of liberal judges out there who could be relied upon to uphold Obamacare who had no formal connection to the administration. We all know that Ginsburg, Breyer, and Sotomayor are going to vote to uphold, for instance, and they have no conflict of interest whatsoever. Heck, Stevens and Souter would have almost certainly voted to uphold too.

Why would the Obama administration needlessly invite controversy in this manner?

[anon]

Kickbacks, how do they work?

[John]

They are stupid and arrogant. They are from Chicago. They never thought they would ever be called on anything.

[x,y]

Because its leader a moron?

[wareagle]

Why would the Obama administration needlessly invite controversy in this manner?
---------------------------
because it sees itself as untouchable, confident that the reliable left nexus of media, activists, and politicians will not raise such questions. So far, they have been right.

Look at his other nominee, the smart Latina. Her "signature" decision involving the firefighters? SCOTUS turned her decision on its ass. But no one mentions that.

[MJ]

And they have good reason to. How many big media outlets are going to admit that Kagan even has a conflict of interest? Therefore, how many people are going to be aware of this outside of political geek circles? The Obama administration are likely to get away with this because with rare exception they own the "cops".

[manny]

There are hundreds of liberal judges out there

Personal connection. Obama knew Kagan personally and so could be completely confident of her ideological commitment.

He put her in his admin to give her a fig leaf of experience to justify putting her on the court.

[Kwanzaa Cake]

That may be true but if you are Obama, why risk it? You might appoint a lesser known person who is very likely to uphold the law, but Kagan was a sure thing who likely gave the administration an assurance as to how she would vote. Heck, even Larry Tribe knew she was an enthusiastic supporter of Obamacare.

[Barely Suppressed Rage]

According to the left, Thomas should recuse because of the work his wife has done. A very convenient double-standard that ignores the work Kagan herself did, directly for the administration in getting O'care passed.

[MJGreen]

What's extra-dumb about that is, if Thomas's wife's work influences his opinion, it would influence him to uphold the law. What profit is there for his household if he strikes down the law? If she lobbies to strike down Obamacare, and the mandate is stricken down, then she's out of a job.

[jj]

Clarity is for dreamers. Kagan is scum.

[Tim]

She is accused of refusing to recuse.
She is accused of refusing to recuse.
She is accused of refusing to recuse.
She is accused of refusing to recuse.
She is accused of refusing to recuse.
She is accused of refusing to recuse.
She is accused of refusing to recuse.
She is accused of refusing to recuse.
She is accused of refusing to recuse.

[Joe M]

It is funny that she recused herself from the discussion about recusal.

[o3]

which puts paid to the hyper-ventilation on this thread. next...

[Episiarch]

Except she didn't recuse herself from the decision, which totally supports everything worried about in this thread

and demonstrates once again that you're a mendacious asshole.i

[o3]

"The court on Monday denied the request without comment, though it did note that Kagan did not participate in the discussion."
_

unless this was 5-4 denial, ur both incorrect and common. thx for playin playa

[Jordan]

He's talking about the case itself, dipshit. Your reading skills match your writing skills.

[Seeds]

That's one handsome judge.

[bibby]

Kagan would be an ugly man. (no homo)

[John]

Terrible decision. The problem is that even if she shouldn't recuse herself there will have been no investigation determining that. So no one on the other side will believe her. The perception that she should recuse herself is as bad as the reality.

You would think judges would know that. But they apparently care more about protecting their own than the legitimacy of their institution.

And the Titties' idea to drag these fuckers before Congress to explain themselves once in a while is bad how?

[Tulpa]

Well, it could be used as a means of harrassment.

[John]

Cry me a river. Every member of the executive branch gets hauled before Congress. it doesn't seem to prevent them from doing their jobs.

[Eric Holder]

Damn straight.

[Tulpa]

Every member of the executive branch gets hauled before Congress.

Except for the prez and veep, you mean. They can call everyone else before Congress because their positions were created by Congress.

Constitutionally-created positions (which includes the supreme court) are not subject to Congressional subpoena.

[Episiarch]

"Except for the prez and veep, you mean."

It's called impeachment, and it has happened you lying cunt.

Seriously, you're demonstrably wrong a half dozen times a day and yet your idiot ass never shuts up.

[cynical]

"It's called impeachment"

Which is something of a last resort, so his point still stands, more or less.

[John]

so his point still stands

You mean fail because he claimed it didn't happen and it was proven it does right?

So by "more or less" you mean "not at all"?

[Episiarch]

"Constitutionally-created positions (which includes the supreme court) are not subject to Congressional subpoena."

Wholly and irrefutably wrong.

[adam]

Do you have an example of that ever happening (and the subject person complying)?

[anon]

And the Titties' idea to drag these fuckers before Congress to explain themselves once in a while is bad how?

Because liberal congresses will drag the conservative justices in, and conservative congresses will drag liberal justices in. The fights over impeaching SC justices will NEVER FUCKING END, and politicizes the court more so that it already is.

[John]

You say "politicized". I say make them answerable to someone. As it is they sit like tribunes. They don't give a shit about anything other than their own egos. I don't care if liberal Congress' drag the conservatives in. The Conservatives ought to have good answers and should be able to tear the Congress critters new assholes. If they can't, then I have no sympathy for them.

[anon]

"Well, you know, if you just vote yes on this next issue that happens to be on the SC's plate, I can make this all go away."

Come on John, it opens a *huge* fucking door there.

[John]

Make what go away? Oh no you won't call me into explain myself? So what. You guys act like actually having to explain yourself to the public is some kind of horror.

[anon]

Oh no, not to the public. To *congress*. There's a difference.

[wareagle]

a good start would doing away with lifetime appointments. Nothing breeds arrogance more than that, except perhaps an Ivy League education.

[mad libertarian guy]

An Ivy League education is a lifetime appointment to be a priestess of the church of academia.

[John]

And if you don't want them to have to explain themselves, then shut up about this. Clearly they are above reproach or meaningful criticism and don't owe the country so much as an explanation for their actions. So how dare you criticize the court for this? Don't you believe in an independent judiciary?

[anon]

Woops, my response above was meant for this.

Anyways, Congress frequently abuses its power already. What makes you think that allowing them to question SC justices will somehow make them *not* abuse this power for political grandstanding?

[John]

They can subpoena anyone in the executive branch. If that power is so evil, why hasn't it affected the executive branch? Why is the Supreme Court such special snow flakes?

[anon]

Because the executive branch doesn't determine whether legislation is constitutional.

[anon]

Expanding a little on this, the congress could use its newfound authority to assure that unconstitutional legislation is deemed constitutional by the court, thereby undermining the entire system.

[anon]

Damnit John, I want to know if I've convinced you!

[John]

I don't think calling them before hearings would do anything but make them have some shame and humility. I just don't see how that power would give the Congress so much influence over the Court. And don't forget, the Congress if it really wants to can just impeach Supreme Court Justices. So an out of control congress can pretty much do what it likes anyway.

[Cunctator]

---"Because the executive branch doesn't determine whether legislation is constitutional."---

IIRC, the President can veto legislation and use the fact that he believes it unconstitutional as the reason for the Veto.

[adam]

I'd say it has affected the executive branch. Executive branch officials do all kinds of dumb stuff so that they won't look bad when they get hauled in front of a congressional committee.

[cynical]

"And if you don't want them to have to explain themselves"

Isn't that what they do in their decisions? I know it's unfashionable to read shit in Congress these days, but it seems like a helpful step to take before provoking a Constitutional crisis.

[cynical]

I'm too lazy to check. Were you upset when POTUS vaguely gave them shit in his SOTU?

[DesigNate]

They write these things called opinions. They explain exactly what the hell they were thinking on any given case. They are even referred to in other cases around the country. On top of that, doesn't the congress hold the power to impeach? If that is the case, then between those two things, there is no goddamn reason the congress needs to haul them in for questioning (absent an actual impeachment hearing).

Unless you're saying that congress is too fucking stupid to read (I wouldn't disagree with you on that).

[Joe M]

The perception that she should recuse herself is as bad as the reality.

Well, yeah, except for the part where she gets to vote in favor of keeping Obamacare.

[fish]

And the Titties' idea to drag these fuckers before Congress to explain themselves once in a while is bad how?

Because it makes for fabulous campaign rhetoric and nothing more. The chance of this happening is about the same as Gingrich being elected........zero.

[Tulpa]

Is there any precedent for the necessity for recusal being decided by the court to which a judge belongs, rather than by the individual judge (or a higher court)?

This may be making a mountain out of a molehill.

[Tony]

Thomas's conflict is far more apparent.

[John]

Only to the retarded Tony. The activities of spouses are never imputed to the judge. The actual judge's activities before joining the bench, like oh say representing one of the parties, is however relevant.

[anon]

I don't understand how Tony's can't comprehend that just because you're married to someone does not mean you agree with them, or even have anything to do with their actions.

Obviously never been in a relationship before.

[John]

For people like Tony the rules only apply to the other side. never his.

[wareagle]

Tony's rationale is simple: 1) party/ideology, 2) any supposition, innuendo, or speculation that can impugn one's character, 3) facts.

[Loki]

Facts never enter into it.

[percy]

Tell that to John and Monica Conyers or to anyone trying to explain HRC's advancement at the Rose Law Firm.

[The Derider]

Their finances are inseparably comingled.

His wife is paid to lobby against the law in question.

The conflict seems obvious.

[Episiarch]

"Their finances are inseparably comingled."

"The conflict seems obvious."

That's because you can be bought, and think others can too.

His wife would get paid to lobby something else quite easily, so the idiotic attempt to portray this as fiscally necessary for him is transparent and pathetic.

[The Derider]

She has already been paid to lobby against it. If Thomas votes against it, how do we know her lobbyist payments are not a bribe?

[wareagle]

but if Kagan votes FOR it? Or is her role meaningless since it coincides with your preferred outcome?

[The Derider]

I think either both Thomas and Kagan should recuse themselves, or neither should.

[Episiarch]

"I think either both Thomas and Kagan should recuse themselves"

I think citing a possible financial motive for Thomas' conflict of interest is beyond moronic.

So, what you think is of little value.

[The Derider]

A possible financial motive is all that's needed for a judge to recuse himself.

Similarly, you demand Kagan recuse herself because of a possible political motive. Neither of us can prove anything.

[Barely Suppressed Rage]

A possible financial motive is all that's needed for a judge to recuse himself.

Untrue. The standard is not some vague "possible financial motive."

[Episiarch]

Because he says they aren't, and they'd both be rich as fuck if she had to find something else to lobby for.

[The Derider]

So people that are already rich have no incentive to make even more money?

This does not mesh with my understanding of economics.

[John]

She has already been paid to lobby against it.

You destroy your own argument, if she's already been paid then she loses nothing if the decision doesn't go her way.

[The Derider]

If she wins she can say "Hey guys pay me to lobby for you I've got a friend on the Supreme Court (wink wink!)"

[Rev. Blue Moon]

She can do that because her husband is an SC justice, and no lobbying is required.

Your point is stupid.

[John]

It has no point, that should have been apparent three posts ago.

[Rev. Blue Moon]

John, that isn't me either. Not that I have any way of proving that, of course, which I guess is the "genius" of griefing with other people's names.

[Warty]

If you speak to our old retard friend The Derider, you deserve whatever you get, John. PWND

[John]

That wasn't John idiot, so much for obvious...

[The Derider]

My point is that having a couple with one spouse on the court and another paid to lobby for or against the same laws before the court is an inherent conflict of interest.

[John]

My point is that having a couple with one spouse on the court and another paid to lobby for or against the same laws before the court is an inherent conflict of interest.

And your point is stupid and wrong. As has been explained to you repeatedly, you just hate it and think respouting it will change something.

[The Derider]

No, there has been a lot of repetition but no explanation. Calling my point "stupid and wrong" doesn't rate.

[John]

Calling my point "stupid and wrong" doesn't rate.

The truth hurts buddy.

[Barely Suppressed Rage]

Their finances are inseparably comingled.

And you know this for a fact how?

I know a couple that have been married for nearly 20 years who never have shared their money. They have two separate bank accounts - his and hers. They each pay for their own expenses. He bought himself his truck; she bought herself her car. He bought himself a lawnmower and snowblower; she bought herself a washer and dryer.

Just because a couple is married does not automatically mean their finances are "inseparably commingled."

[The Derider]

He still owns half the washer, dryer and car. She still owns half the truck, lawnmower and snowblower.

[adam]

Not unless they live in a community property state.

[Diomasach]

Exactly, if he strikes down the law his wife will be out of a job.
So he would be biases towards upholding the law right?

Um, no.

[shrike]

Then why did Thomas refuse to comply with disclosure requirements?

I think they should both recuse.

[John]

He did. Stop listening to voices in your head Shreek.

[shrike]

I saw the form where he omitted the pertinent info.

He corrected it later I suppose.

[Concerned Citizen]

What's this, a liberal who's concerned with legalities? How precious. Nevermind Hillary's cattle futures windfall, the FBI files that walked themselves into the White House, the things removed from Vince Foster's sealed office, Sandy Burglar removing classified docs and destroying them, etc. Fucking hilarious.

[Episiarch]

"Then why did Thomas refuse"

Proof?

Keeping in mid you said "refuse" which makes the claim he was asked to and specifically said he would not.

Prove that. NOT "omitted", not "missed" or "ignored" or "failed to", but refused as you claim.

So, any proof?

[shrike]

We don't know his motive so it could be either.

Thomas just attaches his vote to Scalia's anyway. He doesn't need to sit in.

[wareagle]

He doesn't need to sit in.
------------------
and Kagan is a totally impartial party to all this; pay no attention her resume.

[Episiarch]

You claimed he refused.

You were asked to post any evidence you had that he refused.

Your reply was "We don't know his motive so it could be either" immediately after you made a post that speaks directly to his motive.

However, you either have proof he refused or you don't. This isn't about his motive, you comprehensionally challenged asshole it's about whether your claim that he refused is supported by facts.

You have none. Because you were lying and are now trying to change the subject.

[Barely Suppressed Rage]

Thomas just attaches his vote to Scalia's anyway.

Proving you've never fucking read any of his or Scalia's opinions. Because Thomas has written his own opinion and reasoning many times, rather than joining Scalia's.

Oh, but I know - Thomas is an Uncle Tom, right? Fucking racist asshole.

[R C Dean]

So, Tony thinks that we should be flyspecking the activities of the husbands of Justices, to see if the little woman can be trusted to act ethically?

Seriously?

[The Derider]

Thomas profits from his wife's work. His wife works lobbying against the ACA. Therefore if Thomas votes against the ACA, there exists the possiblity of a quid pro quo.

[Episiarch]

"Thomas profits from his wife's work. His wife works lobbying"

Period, full stop. And she is good at it, so unless you can demonstrate "quid pro quo", then the POSSIBILITY of "quid pro quo" which is not a conflict of interest, is not enough to even open your mouth about.

They would not suffer if his very successful lobbyist wife had to find something else to lobby for tomorrow, so your claims have no merit.

[The Derider]

His wife has a financial interest in the outcome. Therefore Thomas has a financial interest in the outcome. That's a reason to recuse. Period, full stop.

[wareagle]

and POTUS has a political interest in the outcome. Or do you think he nominated Kagan to SCOTUS so she could share recipes with Michelle?

[The Derider]

This has been true of every president who has nominated a supreme court justice. Are you saying that S.C. justices shouldn't be able to rule on cases while the president that nominated them is still in office?

[Rev. Blue Moon]

SC's have never recused themselves because their spouses were lobbyists.

Why do you get to act like something novel should be OK now?

[The Derider]

Which Supreme Court justices have had lobbyist spouses other than Thomas?

I don't know the answer. I'm curious.

[Episiarch]

"His wife has a financial interest in the outcome. Therefore Thomas has a financial interest in the outcome"

I disagree. His wife has been a lobbyist for years, and very successful, so attempting to tie her fiscal success to one case totally fails.

You are wrong. Period. Full stop.

[The Derider]

I don't need to tie her fiscal success or failure to one case. I only need to tie her fiscal outcomes to the case. Which I've done repeatedly and without cogent response from you or others.

You can say "Oh but they're already rich"-- but that's irrelevant. A financial stake in the outcome is a reason to recuse.

[John]

A financial stake in the outcome is a reason to recuse.

Not when the financial stake you're pretending exists is meaningless because of their already amassed wealth.

You're trying to argue that she influences Thomas. That's not recuse-worthy, and the fact that she is influenced, and therefore influences him is not recuse worthy either.

I don't need to tie her fiscal success or failure to one case. I only need to tie her fiscal outcomes to the case.

Which is tying it to one case.

without cogent response from you or others.

You think being married to someone is grounds for recusal. That is so profoundly wrong that responding to it is like explaining to a 3 year old why pooping themselves is not a good idea.

That you don;t get it is your fault, no on else's.

[The Derider]

1. It doesn't matter how much money the Thomas' already have. What matters is that they possibly stand to benefit financially from the outcome of the case. "Why would I take a bribe, I'm already rich?" Is not a cogent response.

2. I'm not trying to argue that she influences her husband. I don't need to. Even if they never spoke about the case, Thomas is well aware his wife (and therefore he) has a financial stake in the constitutionality of the ACA due to her employment as a lobbyist.

3. I don't think being married to someone is, by itself, grounds for recusal. Let's imagine a scenario where Ginny and Clarence are total strangers, and that Ginny owns a public corporation that is paid to lobby in DC. If Clarence owns stock in that corporation, and that corporation was being paid to lobby for or against a bill before his court, he would have a financial conflict of interest in the case, right? Their marriage means that Clarence owns part of her lobbying business in the same way owning stock in it would.

[Episiarch]

"What matters is that they possibly stand to benefit financially"

No actually, that doesn't matter at all since it's not grounds for recusal.

You fail.

[The Derider]

Lol, yes it is dude.

[MNG]

"Lol, yes it is dude."

LOL, NO IT ISN'T. A tenuous possibility that there may at some point be financial enrichment is definitely not grounds to recuse.

Why do you think lying will make anyone believe you?

[The Derider]

I think it works better than bold font.

[Episiarch]

"The Derider|1.23.12 @ 3:33PM|#

You crushed my arguments"

You admitted you were wrong, why are you still here asshole?

[Episiarch]

You know what works better still?

A cite that proves what you claim, that a tenuous possibility of one's spouse gaining something is grounds for recusal.

[John]

Their marriage means that Clarence owns part of her lobbying business

Actually, it means he's married to someone who owns said business.

That such a subtle distinction is lost on you in your sad attempt to draw equivalence is not a surprise.

[The Derider]

Way to ignore all the reasoning behind the argument dude!

How is it different than Clarence owning stock in Ginny's lobbying business?

[Shut the fuck up]

"How is it different than Clarence owning stock in Ginny's lobbying business?"

You don't see how choosing to purchase a financial instrument with the expectation of a reward is different than marrying someone who happens to have some assets?

You're that fucking stupid?

[The Derider]

Yes, I'm that fucking stupid. Explain it to me. It should be easy, right?

[MNG]

1. It doesn't matter how much money the Thomas' already have. What matters is that they possibly stand to benefit financially from the outcome of the case.

You contradict yourself, if they stand to benefit financially from the case, then whether such enrichment is of any statistical significannce very much does matter.

You're trying to say you think Thomas can be bought, you're just couching it in possiblys because you're too cowardly to say it.

The possibility of a quid pro quo isn't ground for recusal. You have no argument other than "it should be", which is worthless.

[The Derider]

Here's why you're having trouble understanding this: When it comes to the supreme court and grounds for recusal, there are no other arguments than "it should be." Justices make their own decisions. Nobody tells them when they have to sit out. Every argument in the thread saying Kagan is compromised is an "it should be grounds for recusal" argument.

[MNG]

When it comes to the supreme court and grounds for recusal, there are no other arguments than "it should be."

Ah, I get it now, you're a moron with no idea what the fuck actually happens, and have given up on your totally destroyed attempt to claim recusal in necessary for the possibility that on;es spouse MIGHT POTENTIALLY benefit from some unknown and unproven financial arrangement.

That's good at at least.

[The Derider]

Please, enlighten me as to what the fuck actually happens.

Maybe take a xanax first.

[MNG]

Please, enlighten me as to what the fuck actually happens.

Ok, some asshole like you claims "When it comes to the supreme court and grounds for recusal, there are no other arguments than "it should be."" and everyone laughs at him.

You're welcome.

[The Derider]

Who gets to tell the supreme court when to recuse themselves, other than the supreme court?

[Barely Suppressed Rage]

A financial stake in the outcome is a reason to recuse.

Yes, and by the legal standards and defnitions that have been established, with which you evidently are utterly and completely unfamiliar, she does not have a financial interest in the outcome of this case.

[R C Dean]

His wife has a financial interest in the outcome.

She does? You have proof that if SCOTUS strikes this down, someone has agreed to pay her?

It seems to me that she would probably make a lot more money if Obamacare stayed on the books, lobbying against it.

[The Derider]

Ok, so at least we agree that the Thomas' have a vested financial interest in the outcome of the case!

[Shut the fuck up]

"Ok, so at least we agree that the Thomas' have a vested financial interest in the outcome of the case!"

No, we don't, you just keep pretending he does and are using it as grounds, despite being shown it isn't.

[The Derider]

Don't cry, little Rothbard, don't cry!

[MNG]

Don't cry, little Rothbard, don't cry!

That's what you've resorted to now that your arguments have been crushed.

[The Derider]

You crushed my arguments! The horror!

[John]

You crushed my arguments

We saw that, it was obvious when you resorted to "Don't cry, little Rothbard, don't cry!".

At least you admitted it.

[The Derider]

It was a dumb attempt to troll, I don;t know why I clung to it for so long.

[Episiarch]

Don't cry, little Rothbard, don't cry!

Wait wait wait, you actually said that?

AHAHAHAHAHAHAHAHAHAHAHAHAAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAAHAHAHAHAHAHAHAHHAHAHAHAHAHAHHAHAHAAHAHAHAHAHAHAHAHAHAHAHAHAHAAHHAHAHAHHAAHAHAHHAHAHHAHAH @ YOU

[MNG]

vested financial interest

You contradict yourself again, if they have a "vested financial interest" as you claim, then their current level very much matters.

Twice you've lied about this.

[The Derider]

Twice you've made that unfounded assertion.

You're arguing that the Thomas' have too much money to be motivated by money. Which is nonsense.

[MNG]

You're arguing that the Thomas' have too much money to be motivated by money.

No I'm not, but again, subtle distinctions are too much for your intellect.

Don't cry.

[MNG]

Twice you've made that unfounded assertion.

Seems very founded to me, you refuted it by saying it's nonsense.

So, you didn't refute it at all.

If one is wealthy and successful to the point that money is not a goal or desire, then claiming one can be influenced by money is fucking retarded.

Which you are doing.

[The Derider]

So if I put a 90% income tax rate on all households with more assets than Clarence and Ginny Thomas, there will be no consequences for the output of those households because "If one is wealthy and successful to the point that money is not a goal or desire, then claiming one can be influenced by money is fucking retarded?"

Because that's your argument.

[MNG]

Because that's your argument.

No, actually, it isn't.

[The Derider]

Ok, so we agree that even the very rich are motivated by money? Because your feigned ignorance is getting tedious.

[MNG]

Cool, caused your real ignorance got tedious quite some time ago.

Ok, so we agree that even the very rich are motivated by money?

No, we don't.

[The Derider]

Ok, then why would taxing the very rich change their behavior?

You can't have it both ways.

[MNG]

You seem to think I'm going to let you change the subject.

I'm not.

[Episiarch]

Don't cry, little Rothbard, don't cry!

Wait wait wait, you actually said that?

AHAHAHAHAHAHAHAHAHAHAHAHAAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAAHAHAHAHAHAHAHAHHAHAHAHAHAHAHHAHAHAAHAHAHAHAHAHAHAHAHAHAHAHAHAAHHAHAHAHHAAHAHAHHAHAHHAHAH @ YOU

[R C Dean]

Since OCare also places at risk the future financial viability of Medicare (or, if you prefer, assures the future financial viability of Medicare), and

the Justices (and/or their spouses) will all be using Medicare to cover their healthcare bills, then

all the Justices have a "vested financial interest" in the outcome of the case and should recuse themselves.

Not to mention that one searches the Code of Judicial Ethics in vain for a provision on recusal if you husband might indirectly benefit financially from a decision, but there is pretty clear language on recusal if you represented one of the parties on the matter at issue.

[The Derider]

I searched, but not in vain!

RULE 2.11
Disqualification
(A) A judge shall disqualify himself or herself in any proceeding in which the judge's impartiality* might reasonably be questioned, including but not limited to the following circumstances:
?
(2) The judge knows* that the judge, the judge's spouse or domestic partner,* or a person within the third degree of relationship* to either of them, or the spouse or domestic partner of such a person is:
?
(c) a person who has more than a de minimis* interest that could be substantially affected by the proceeding; or

ABA model code of Judicial Conduct 2007

Note that the long term, country-wide effects of legislation definitely fall into the "de minimis" category.

[Episiarch]

" a person who has more than a de minimis* interest that could be substantially affected by the proceeding;"

Which his wife does not.

Your own cite proves you wrong.

[R C Dean]

Generally, when citing to authority, it helps to cite to the authority that applies.

Such as, the Code of Conduct for United States Judges, not to be confused with the ABA Model Code.

http://www.uscourts.gov/RulesA.....udges.aspx

In that case, the rule you are groping for is this:

(c)the judge knows that . . . the judge's spouse . . . 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;

Don't forget to check the definitions:

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

So, no, Mrs. Thomas has no "financial interest" that could be substantially affected by this case. Unless you want to show us that her list of clients includes the parties to this case, of course.

[MNG]

(c) a person who has more than a de minimis* interest that could be substantially affected by the proceeding; or

Thanks for proving me right about my initial point, her business existed before and will exist after, regardless of the outcome. She was already successful.

So, by definition, her relationship is de minimis and I am right and you are wrong.

Note that the long term, country-wide effects of legislation definitely fall into the "de minimis" category.

Note that you have misread something and look like an idiot.

[The Derider]

That's not what de minimis means.

Note that you have no idea what you're talking about.

[MNG]

That's not what de minimis means.

It means minimal. So, a successful business that will still exist and is in no way dependent on the outcome, is in fact, exactly what it means.

Note that upon trying to look it up, you'll see I'm right again, and that you have misread something and look like an idiot.

[Rev. Blue Moon]

"Note that the long term, country-wide effects of legislation definitely fall into the "de minimis" category."

Maybe, but Thomas's wife's interest is what's at question in the code.

Since that seems to be one of customer/client, it would seemingly fall into the de minimis category.

[wareagle]

if Ginny's paycheck was incumbent on a particular outcome, this might be an interesting argument. But as lobbyist, she merely advocated a position. It's what they do.

Kagan, meanwhile, worked for the administration while this thing was being drafted. Who honestly believes she was hands off? And if on the off chance she was, as Solicitor General, she could still be termed an advocate of the administration's position. Did Obama then nominate her to the SC expecting her position to change?

[Barely Suppressed Rage]

His wife has a financial interest in the outcome.

How so? Does she have an agreement that if the SCOTUS overturns the law, she gets a bonus check?

Because the fact that might have done lobbying or consulting work and was paid for it =/= having a financial interest in the outcome. Having a financial interest in the outcome means if it goes one way, and only if it goes that way, you profit, and if it goes the other way, you don't.

But I'm sure these nuances likely are beyond your reasoning ability.

[The Derider]

His wife's reputation as a lobbyist is improved if the law is overturned. She will be able to make more profit in the future from that reputation.

[wareagle]

so potential correlation equals causation? Come on. Lobbyists win some, lost the rest, just like lawyers and coaches. Banking your reputation on the notion that something you support or oppose will head to the SC for final disposition seems a stretch.

[MNG]

His wife's reputation as a lobbyist is improved if the law is overturned. She will be able to make more profit in the future from that reputation.

It thinks if it keeps repeating itself that the debunked points it made won't be debunked anymore.

[R C Dean]

Please note above, where I quote from the code of ethics that applies, which makes perfectly clear that there is no cognizable conflict of interest here.

[Fwied Wice]

Her reputation could be improved by taking an obvious loser and giving it a chance. Her reputation could suffer by making a seeming no brainer into a close fight.

Saying "she looks good if she wins" doesn't rise to the necessary standard. Saying "she gets paid more if she wins" doesn't really either.

Her job is to lobby, not hold the position. I have the ability to differentiate between someone holding a professional opinion, and their private beliefs. I don't believe, for example, that being his wife matters in relation to lobbying unless her beliefs coincide.

I think both her and her husband are professionals, and I understand that professionals can distinguish the same way I can.

You apparently do not, or can not. You think that any association that potentially pays someone at a alter date is grounds for recusal.

I ask you, then, is not the participation in the implementation of public healthcare something that a justice could benefit from, say, in the writing of a memoir?

Yeah. Which means, when you look at it, your argument is pretty thin gruel.

[Barely Suppressed Rage]

His wife's reputation as a lobbyist is improved if the law is overturned. She will be able to make more profit in the future from that reputation.

First, that might be a possible effect, but it is speculative at best. How the hell would her "reputation as a lobbyist" improve if the law were overturned? If overturned, it will not be because of her lobbying efforts. What a load of peurile horse shit.

Second, even it were a sure thing, having the speculative, remote possibility that sometime in the future you MIGHT be able to "make more profit" is not at all the same as having a direct financial stake in the outcome of THAT particular case.

Your critical thinking ability evidently is utterly atrophied.

[Barely Suppressed Rage]

His wife has a financial interest in the outcome.

No, she does not.

If the case were, for example, a controversy about how gets title to a piece of real estate, and his wife would get the title if he decides one way but would not get it if he decided the other way, then yes, she would have an actual financial INTEREST in the outcome.

Your utterly theoretical and highly speculative of what MIGHT happen, maybe, theoretically is not at all a financial interest in the outcome.

[BC]

His wife has a financial interest in the outcome.

Citation needed.

[Diomasach]

So you're concerned he'll vote to uphold the mandate in order to keep his wife in a job? Really?

I don't think so. He's a pretty solid Constitutionalist, he'll probably vote to strike down the mandate even if it does put his wife out of work (until she finds something else to lobby for).

[Rev. Blue Moon]

Geez, you people just love the trolls, doncha? Mein Gott.

[Episiarch]

"you people just love the trolls, doncha?"

Honestly, no, you're pretty roundly despised.

[Rev. Blue Moon]

I am going to go ahead and assume that's a spoof.

[Episiarch]

Nope. We hate you. Ask around.

[Warty]

She's terrible at impersonating Epi, dude. It's not very hard to tell.

[John]

Whereas, you're just terrible.

[Rev. Blue Moon]

Regardless, this whole thing is just awful. If registration is the solution, then let it come sooner rather than later.

[Episiarch]

Guy, registration brings ignore without needing chrome or reasonable, and if that happens, your sad 5th grade trolling is fucked.

[Rev. Blue Moon]

Whoever you are, I hope you are really proud of yourself. No, really, destroying a community is so awesome.

[SugarFree]

We know they can ban at the IP level, Rev. That means--for some baffling reason--they want it to be this way.

[Rev. Blue Moon]

We know they can ban at the IP level, Rev. That means--for some baffling reason--they want it to be this way.

I have been here for a long while, but this is the lowest I have seen this place sink, and the Stewards of Reason seem to not give a damn.

[John]

"No, really, destroying a community is so awesome."

I wouldn't call a handful of cliquish, irrationally opinionated, futurama referencing adolescents a "community", and I certainly wouldn't be so pathetically melodramatic about it if I did.

And we still hate you.

[Episiarch]

"but this is the lowest I have seen this place sink"

So, you weren't paying attention when you boarded.

[Rev. Blue Moon]

WAHHHHHHHHHHHHHHHHHHHHH!!!!!

COMMUNITY!!!!!!!!!!!!!!!

WAHHHHHHHHHHHHHHHH!!!!

(very proud btw)

[Rev. Blue Moon]

You sugarfreed the screen name.

[Warty]

We get to enjoy Tony, Dan T, our old moronic friend The Derider, and rectal spoofing Epi all at once. Yay!

[John]

Perhaps one day you'll have the pleasure of finally doing something we can enjoy.

Dying.

[Rev. Blue Moon]

Oh great, now she's doing John, too.

[Episiarch]

And we still hate you.

[John]

Not me RVB. Not me. I never say bad things about Warty.

[Rev. Blue Moon]

I know, John. rather's adopting other people's handles so we can't incif/reasonable-filter her.

[Rev. Blue Moon]

And of course, I'm overreacting in a massively emotional way.

[John]

I think them, and I want to say them, but I don't.

[Warty]

You know better.

[John]

That wasn't john either twat.

[Barely Suppressed Rage]

Thomas's conflict is far more apparent.

Right, because the fact that Kagan worked on getting the law passed while working for the Obama Administration, advocated for it and issued an opinion to the Administration about it is not any kind of "apparent" conflict.

Holy shit you are fucking thick.

[John]

I know it is too much to ask for. And from what I know of Kagan from the people I know who were at Harvard while she was Dean, she is a total unpleasent hack. But it would be funny as hell to see Kagen vote to strike down the mandate in order to get a 6-3 decision. The gnashing of teeth would be epic.

[Joe M]

I can't even imagine a universe in which that happens.

[anon]

If it does, I'm stocking up a lot more on ammo. Because the end of the world *will* be coming.

[shrike]

I heard that Thomas was a fan of Long Dong Silver and an unpleasant hack.

[Anita Hill]

actually, I found him quite pleasant which is why I worked for him in more than one setting. As to the dong, I'll just say hi-ho and leave it at that.

[Hi-tech Lyncher]

You rang?

[Jordan Elliot]

Do you hang them from Data Trees?

[Hi-tech Lyncher]

Just their reputations.

[shrike]

mmph glgghh mmpph slurp slurp glrglg mmpgh slurp

[P Brooks]

This is a purely rhetorical question, but...

Is the pool of available legal "talent" really so shallow that the best and only candidate for that Supreme Court vacancy was the President's in-house counsel?

[Harriet Myers]

Apparently.

[Pro Libertate]

Exactly. The Senate needs to grow a pair and now allow anyone like that to be placed on the bench. Even among the qualified, people with lots of overt politic in their background really shouldn't get confirmed.

[Pro Libertate]

"Not allow", that is.

[Hobie Hanson]

It is to be expected that a President with a derp background in constitutional law would choose the best constitutional mind out there to be his counsel. So it's no coincidence that she was the best person for the Supreme Court too.

Have you noticed how much faux-constitutional trouble the obstructionist Republicans have made for him in Congress since she left? I bet he wishes he had kept her around.

[John]

That is comedy gold. Kegan didn't deserve tenure at Harvard much less to be dean. She is not any kind of a constitutional scholar. She has never so much as written a law review article on the subject.

Seriously, where do you people get this shit?

[wareagle]

same place the got the notion that the alleged Constitutional law professor is the single smartest human being to ever walk among us, so smart that he does not actually walk, he glides, his feet never really touching the ground.

[Loki]

And that His "ascension" to the presidency would be the "moment the oceans would beging to recede and the planet would begin to heal". In other words, because He said so.

[JD]

It is to be expected that a President with a derp background in constitutional law would choose the best constitutional mind out there to be his counsel.

I think that is the perfect way to describe Obama's constitutional law background.

[Loki]

Derp-dee derp, ta teedily derr. Derp dee derp de teedily derp-dee derp de dumb.

[Warty]

"If you don't want to go outside, then go play in your room. I'll come and get you when it's time to go to McDonald's." Terri had no intention of actually taking the brat out to eat, but she'd have time to come up with an excuse later.

Seemingly defeated, Janet slowly walked out of the living room of the small house back towards the bedroom she shared with Hallie's three-year old son Jason. Terri snuffed out her cigarette in a plastic ashtray on the coffee table and leaned back on the couch, wondering to herself if Hallie had any potato chips or Twinkies anywhere in the kitchen.

[Rev. Blue Moon]

Is that the one where the kittens die? I prefer his space-operas with all the made up words myself.

[Warty]

The mentions of McDonald's and Twinkies are the best part. "I hear poor people eat at McDonald's! I'd better include those details, for realism."

[Jordan Elliot]

Best trolling I've seen on here in a while.

[Old Soldier]

"This is how I bench-pressed 600 lbs".

[percy]

"Wait a minute. Who told you I was a lesbian?"

[califronian]

We are so doomed. She is the absolute worst kind of justice we could have and she is going to be the new norm, too.

[califronian]

Obama would benefit from an overturn. Then he gets the best of both worlds. No mandate, which is highly unpopular, and to his base he can blame the right for it. Win win for him.

[RZR]

Does anyone else think libertarians might be taken more seriously if they didn't use Dittohead slang like "Obamacare"?

[Episiarch]

Don't you think you'd be taken more seriously if you weren't an idiot who said shit like "dittohead" in a sad attempt to denounce those you disagree with but can't refute?

[The Derider]

You can both be right!

[RZR]

I didn't try to refute anything. I just don't consider Obama Derangement Syndrome an "idea."

[Episiarch]

I didn't try to refute anything.

And I didn't say you did. Oops.

I just don't consider Obama Derangement Syndrome

Does anyone else think this cunt might be taken more seriously if it didn't use MSNBC slang like "Obama Derangement Syndrome"?

[Kelso]

That's what I call a RZR-burn!

[huge brain]

"Obamacare" is pretty universal nowadays except amongst those who make a point of saying HCRA.

Same thing happened with SDI/"Starwars Missle Defense".

[cynical]

We could call it pee pee caca if you prefer.

[which]

wait! what?

[Barely Suppressed Rage]

Caption: "This chick was so fat, this is how I had to motorboat her."

[JB]

So it's ok to recuse her from talking about her recusal, but you won't actually recuse her?

[alaamiah]

Klayman, asked the court for permission to file a brief on Kagan's participation in the case.