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House GOP Ignores Thomas Ethics Scandal To Launch Frivolous Attack On Justice Kagan

By Ian Millhiser on Jun 30, 2011

Last week, the New York Times reported that Justice Clarence Thomas received a series of lavish gifts and other favors from a leading Republican donor, including $500,000 to allow Thomas’s wife to start a Tea Party group and a $19,000 Bible that belonged to Frederick Douglass. Additionally, Thomas received a gift worth $15,000 from the American Enterprise Institute, a conservative think tank that often files briefs in Justice Thomas’ Court. Justice Thomas did not recuse himself from at least three cases where AEI filed a brief.

Rather than acknowledge this ethical scandal — a scandal which is striking similar to the gifting scandal that forced Justice Abe Fortas to resign from the Court in 1969 — the GOP has decided to throw up a smokescreen. In a transparent attempt to distract from the very serious allegations against Justice Thomas, forty-nine GOP lawmakers signed a letter to the House Judiciary Committee leadership seeking an probe into utterly frivolous ethical allegations against Justice Elena Kagan:

Forty-nine Republican members of Congress on Thursday asked the House Judiciary Committee to "promptly investigate" Supreme Court Justice Elena Kagan's role in preparing a legal defense for President Obama's health care law, saying her prior work in the Obama administration should disqualify her from considering any challenge to the law before the high court....

According to the law, they said, a justice should recuse in cases “where he has served in government employment and in such capacity participated as counsel, adviser or material witness concerning the proceedings or expressed an opinion concerning the merits of the particular case in controversy.

First of all, there is absolutely, positively no case whatsoever supporting Kagan’s recusal from the Affordable Care Act cases. To have “participated” in a “particular case in controversy,” a judge must have been a lawyer, adviser or witness in the exact same lawsuit that is now before their court. Because none of the health care cases currently pending in federal court had been appealed before Kagan was confirmed to the Supreme Court, Kagan would not have done any work on those specific cases. Normally, the Solicitor General first becomes involved in federal litigation at the appellate level, if at all.

Second, the letter effectively accuses a sitting Supreme Court justice of perjury despite no evidence supporting that allegation. Kagan testified under oath during her confirmation hearing that she had no involvement whatsoever in the health care litigation. If the GOP actually has evidence that Justice Kagan is a felon, then they should produce it. Otherwise they should avoid making libelous accusations without proof.

Third, a hearing on Kagan wouldn’t even be the first time right-wing activists launched an unsuccessful witch hunt on this very issue. Earlier this year, a conservative news outlet filed a FOIA request seeking documents relating to Kagan’s involvement in the health care litigation. After examining the documents, National Review writer Carrie Severino, a former law clerk to Justice Thomas, was forced to conclude that the documents contain no evidence requiring Justice Kagan’s recusal.

Here’s what’s actually going on here: last week, Rep. Chris Murphy (D-CT) circulated a draft letter to his colleagues seeking an hearing on the many ethics scandals surrounding Justice Thomas and two of his conservative colleagues. The next day, he pointed out that Republicans won’t speak out against Thomas because “he’s doing their bidding on the Supreme Court today, and they don’t want to do anything that compromises his ability to enforce a political agenda in the United States judicial system.”

The GOP’s silence on Thomas is as unfortunate as it is predictable, but their baseless attacks on Kagan are particularly underhanded. Forty-nine Members of Congress just suggested that a Supreme Court justice committed a serious felony, and they appear to have made this accusation solely to distract from the massive ethics scandal plaguing one of their allies on the Supreme Court.