Tony Katz

The American Left has been railing about Justice Clarence Thomas. His wife, Ginni Thomas, is a Tea Party supporter, and the CEO of - a 501(c)(4) that focuses on the value of liberty with "insistence on limited government."

The Left believes that Justice Thomas would be unable to render an impartial decision on Obamacare, the Constitutionality of which will be determined by the Supreme Court when they hear oral arguments in March of 2012. The Left argues that because of Ginni Thomas's work that Justice Thomas will be skewed in his decision making, and are demanding that he recuse himself.

Yet, they remain woefully silent on Justice Elena Kagan. Kagan was the Solicitor General under President Obama before being nominated to the high court. As Solicitor General, Kagan's job was to argue cases in front of the Supreme Court on behalf of the administration. If she was still there, she would be the one arguing for Obamacare in front of the court.

As is reporting, Kagan "cheered" when the House (under then Speaker Nancy Pelosi) ramrodded the bill through. In an email to Laurence Tribe, a famed lawyer who was working in the Justice Department at the time, Kagan reportedly stated:

I hear they have the votes, Larry!! Simply amazing

The full email exchange can be found here. Kagan's need to recuse herself is, first and foremost, based in the rules of the Court itself:

According to 28 USC 455, a Supreme Court justice must recuse from “any proceeding in which his impartiality might reasonably be questioned.” The law also says a justice must recuse anytime he has “expressed an opinion concerning the merits of the particular case in controversy” while he “served in governmental employment.”

For Kagan to say that she has had no opinion on Obamacare while serving in a official capacity to craft and/or defend the legislation is simply a lie. Tribe, for his part, is doing a wonderful soft shoe in defending Kagan, stating to that 28 USC 455 should not apply to Kagan. Tribe further claims that he and Kagan never spoke about Obamacare when she was the Solicitor General.

Tony Katz

Tony Katz is a radio talk show host, writer, public speaker and cigar enthusiast. His show can be heard on 93.1FM WIBC in Indianapolis, and at