Recusal on the High Court Gets Attention As Health Care Law Works Its Way Through the Courts

Politico yesterday ran an article describing the efforts on both the left and the right to force the recusal of certain justices from the upcoming challenge to the Affordable Care Act, which could be heard in the Supreme Court as early as next October. Conservatives have argued that Justice Kagan should recuse herself because she was Solicitor General while the case was active within the Department of Justice, while progressives have argued that Justice Thomas should recuse due to fact that his wife earned over $700,000 lobbying against the passage of the law. Neither Justice has recused from the case and neither is likely to do so.

Legal ethicist Stephen Gillers predicted that whichever way the case comes out, the losing party is likely to attack the integrity of the decision on the basis that Justices Kagan or Thomas (depending on which side prevails) should have recused from the case.

Regardless of whether one agrees with these arguments, under the current system the only arbiter of the facts and legal issues raised by recusal motions is the accused justice, who may deny a motion without issuing a written explanation. Continuing to allow each individual justice to have the final and only say as to whether they might appear biased risks the continued erosion of public confidence in the integrity of the Court as an institution, and heightens fears that the Supreme Court has become inappropriately politicized.

That is one reason why Alliance for Justice is calling for reforms to the Court’s recusal process that would create more transparency and accountability around a justice’s decisions not to recuse from a case. The current procedure governing recusals should be modified to provide for some method of review of an individual justices’ decision not to recuse. Such a process would help ensure the recusal statute's "appearance of bias" standard is applied, thereby strengthening the ethics of the Court.

To learn more about ethics on the Supreme Court, and the reforms called for by Alliance for Justice, click here.

AFJ Decries District Court Ruling on the Constitutionality of Health Care Law

Alliance for Justice President Nan Aron issued the following statement today on the ruling by U.S. District Court Judge Henry E. Hudson that portions of the health care law passed by Congress earlier this year are unconstitutional:

If anyone needed proof that judges matter and that the current battle in the Senate over judicial nominations is a fight worth having, they need look no farther than today’s ruling by Judge Henry Hudson, a former conservative Republican politician from Virginia, on a lawsuit filed by a current conservative Republican politician from Virginia, state Attorney General Kenneth T. Cuccinelli. So far, only judges appointed by Republican presidents have found the conservatives’ case to have merit, in spite of almost 70 years of precedent on commerce clause issues that argue for the opposite conclusion.

There are 38 judicial nominees languishing on the Senate floor today, blocked from final consideration by an obstinate, obstructionist Republican Party bent on preventing President Obama from filling federal district and circuit court judgeships, even those in courts facing “judicial emergencies.” Today’s decision puts the stakes in stark relief as the President’s agenda and many other important social and economic policies are challenged in federal court. It’s long past time that all those who care about health care, civil liberties, worker rights, or any core principle or issue, get serious about our courts and work to ensure the confirmation of President Obama’s nominees, before it’s too late.

Click here to read a report by Alliance for Justice on the career of Judge Henry E. Hudson (PDF).

Florida District Court Judge Allows Suit Against the Health-Care Law to Continue

Today, U.S. District Judge Roger Vinson ruled that the lawsuit seeking to overturn healthcare reform can proceed. Led by Florida and joined by 19 other U.S. states, the suit against reform claims that the law is unconstitutional because it requires citizens to obtain coverage, among other issues. For everyone who worked in the progressive community to ensure that healthcare legislation passed, let this be a warning that Conservatives will do everything in their power to overturn the legislation, and that their decades' long efforts to pack the federal judiciary with right-wing conservatives who favor corporate interests over the American people will aid them in their effort.

This case is headed to the Supreme Court, which has demonstrated a strong bias toward big business. Progressives need to learn what conservatives have known for decades - the courts matter. With President Obama's nominees for federal judgeships currently stalled in the Senate, the risks to the progressive agenda grow on a daily basis. The Senate needs to act and confirm judges who will stand for equal justice for all, not just the powerful.

Ashby Jones with the Wall Street Journal has an extensive run-down of the case which will be heard on December 16th.

Urgent: Protect Women's Reproductive Freedom

Yesterday Senators Ben Nelson (D-NE) and Orrin Hatch (R-UT) introduced an amendment to the Senate health care bill that is similar to the Stupak-Pitts amendment that was passed by the House.

The Senate is debating the amendment today, and will likely vote later this afternoon. If the Nelson-Hatch amendment passes, the Stupak-Pitts amendment will almost definitely end up in the final health care bill. Passing health care reform in this country shouldn't come at the cost of women's reproductive rights. But that's exactly what will happen if Democrats allow the anti-choice Nelson-Hatch amendment to become law. These amendments make it virtually impossible for insurance companies participating in the new health care system to provide abortion services for women who have their own private insurance plans.

This measure must be defeated. Time is of the essence, call your senators now and urge them to oppose Nelson's amendment and stop it any way they can, including a vote to table it.

Capitol Switchboard - (202) 224-3121

UPDATE: The Senate just voted to table the Nelson amendment. The vote was 54 to 45. Thanks to all of you who took action.

Medical Malpractice Survivors Are Not Frivolous

Families from nine states, including many who have been catastrophically injured due to medical malpractice, traveled to Washington, D.C. yesterday to ask Congress to ensure that the much-needed health care bill does not strip injured patients of their legal rights. Standing in front of the U.S. Capitol wearing buttons proclaiming “I am not frivolous” the malpractice survivors also thanked lawmakers who stood with them at a news conference today, including U.S. House Judiciary Chairman John Conyers (D-MI) and Representative Bruce Braley (D-IA).

The survivors shared poignant stories about their experiences with the health care system and emphasized the need to improve patient safety and all patients access to justice. “I hope the entire U.S. Congress takes their lead by focusing their attention on preventing these tragedies from happening and protecting the legal rights of all Americans,” said Lisa Gourley of Nebraska, whose son Colin was brain-damaged at birth as a result of a doctor’s negligence.

"Expanding access to health care for millions of uninsured Americans should not be coupled with blocking access to justice for injured patients in a blatant attempt to insulate insurance companies from responsibility for valid malpractice claims," said Nan Aron, President of Alliance for Justice.