Anthony Weiner on the Obligation to Recuse

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Welcome to Politics Bites, where every afternoon at It's A Free Country, we bring you the unmissable quotes from the morning's political conversations on WNYC. Today on The Brian Lehrer Show, Anthony Weiner, US Congressman (Democrat from District 9, parts of Brooklyn and Queens), talks about the deal to fund the federal government for two more weeks, offensive statues, and other Congressional matters.

Supreme Court Justice Clarence Thomas is being called upon to recuse himself from ruling on the legality of healthcare reform due to the contributions and financial gain that his wife has enjoyed from anti-health reform clients. Speaking recently to a conservative law student symposium, Thomas referred to the criticism as the “price to pay for standing for your constitution” and acknowledges that he shares his wife's values. Congressman Anthony Weiner finds this a clear case in which recusal is necessary.

[Thomas] digs a deeper hole for himself, requiring under the clear letter of the law that he has to recuse himself. Even before he made those remarks, it was clear that he had a financial stake in the outcome of the case, which is a clear condition that you should recuse yourself.

While he said that Mrs. Thomas has "every right in the world to participate in the political process however she wants, and to even make a lot of money doing it," he takes issue with the Justice's statement indicating that compliance with the obligations for recusal amounts to yoking Justice Thomas in his pursuit of the defense of liberty. 

I guess I’m against liberty because I believe in having this law upheld on its constitutionality.

The difference here, he said, is that if there is a conflict of interest for one of the judges, yet they do not recuse, there is no way to appeal.

It’s not like a lower court... They are the highest court in the land so the standards should be extra tough, and it’s clear in the case, that it is not on the level.

The congressman said while some of Ginny Thomas’ clients are just generally conservative; there are two organizations, Liberty Consulting and Liberty Central, which are explicitly boasting of her connections as a tool to raise money. Title 20 of the US code says that if there is a financial interest in the subject matter, for either the judge or their spouse, the judge is obligated has to recuse themself. In Thomas' case, Weiner added, the information only became recently public.

For thirteen years, Justice Thomas on his financial disclosures failed to disclose the income of his spouse, and that adds even further suspicion that they were trying to keep it private, but it certainly is clear that the perception is there of conflict, and with that perception comes the requirement to recuse.

Weiner said this is not rhetorical pushback for the conservative call for Justice Kagan to recuse herself, and he would not take a deal in which neither recuse. 

Kagan has recused herself from more than half the cases before her and has made it very clear in each instance why she has done that.

The congressman does not see a conflict for Justice Kagan, who he said only attended one meeting on healthcare reform and had no role in drafting or defending the law. 

It is clear to me that Clarence Thomas has a conflict here, and if someone wants to make an equal case on Kagan, they're free to do it but so far the facts don't bear it out.

The congressman said he feels that Thomas is being reckless "in adding to the fuel of speculation that he’s already made up his mind about this.” He clarified that he does not believe Justices must be silent or refrain from speaking at functions, but they must exercise prudence in what they say. 

I do believe that it is an extraordinarily important thing that they not give the impression that they’re engaging in politics. Ever since Bush v. Gore in 2000, I think many Americans have wondered if the Supreme Court is just a third political branch of government, and [Thomas] has been reckless in reinforcing that concern.

If Thomas "had ever spoken from the bench" said Weiner, speaking of Thomas' negative comments about the commerce clause of the law, "he could say that sort of thing from the bench”. However Weiner said that Thomas refering to it in his speech while reiterating his connection to his wife and his agreement with the values she is working to promote are reason for him to recuse. 

Weiner does not think it is inappropriate to use the interstate commerce law to support the individual mandate in the health care reform. 

People, by acting to not get health insurance, are participating in interstate commerce. Even though they haven’t chosen to do so, the fact that they’re not, is saying ‘I want everyone else to pay for my emergency health care costs if I don’t have insurance.’ So that failure to purchase healthcare is indeed an action.. You’re actively making the decision to have someone else cover your healthcare costs. That decision puts you right in the middle of this national discussion.