Seventy-four Democratic members of Congress, led by Anthony D. Weiner, have signed a letter to Justice Thomas asking that he recuse himself from any deliberations on the constitutionality of Obamacare. Here’s the gist of its case for recusal:
The appearance of a conflict of interest merits recusal under federal law. From what we have already seen, the line between your impartiality and you and your wife’s financial stake in the overturn of healthcare reform is blurred. Your spouse is advertising herself as a lobbyist who has “experience and connections” and appeals to clients who want a particular decision – they want to overturn health care reform. Moreover, your failure to disclose Ginny Thomas’s receipt of $686,589 from the Heritage Foundation, a prominent opponent of healthcare reform, between 2003 and 2007 has raised great concern.
Let’s first consider this sentence: “Your spouse is advertising herself as a lobbyist who has ‘experience and connections’ and appeals to clients who want a particular decision – they want to overturn health care reform.” I don’t see how the assertion that Mrs. Thomas “is advertising herself as a lobbyist who has ‘experience and connections’” has any bearing on recusal.
I don’t know how to parse the next phrase—“appeals to clients who want a particular decision – they want to overturn health care reform.” Is the letter asserting: “Your spouse is advertising herself as a lobbyist who … appeals to [i.e., solicits] clients who want a particular decision – they want to overturn health care reform”? If so, what’s the evidence? (And wouldn’t a Court decision, or the prospect of a Court decision, against Obamacare make it less likely that folks would retain lobbyists to pursue political repeal of Obamacare?) Or is the letter asserting: “Your spouse … appeals [i.e., is attractive] to clients who want a particular decision – they want to overturn health care reform”? If so, what bearing would that asserted fact have on Justice Thomas’s recusal?
Let’s look at the other substantive allegation: “Moreover, your failure to disclose Ginny Thomas’s receipt of $686,589 from the Heritage Foundation, a prominent opponent of healthcare reform, between 2003 and 2007 has raised great concern.” Justice Thomas has acknowledged that he incorrectly filled out his financial-disclosure form by failing to note a fact that was already public knowledge—that Mrs. Thomas was employed during those years by the Heritage Foundation. How Mrs. Thomas’s former employment with the Heritage Foundation, in years before Obamacare was proposed and enacted, could require Justice Thomas’s recusal in any constitutional challenge to Obamacare is a mystery to me.
I am certainly not excluding the possibility that there might at some point be actual facts—e.g., the (hypothetical) filing by Mrs. Thomas’s organization of an amicus brief in lower-court proceedings against the constitutionality of Obamacare—that would require Justice Thomas’s recusal. But the letter from the 74 Democrats is laughably devoid of any such facts.