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POLITICS TESTS SEPARATION OF POWERS

Posted by Admin Posted on Feb 22 2011

The legal maneuvering over the 2010 health care reform law has moved squarely into politics . . . if it was ever not political.

In an interview on Fox News, Sen Orrin Hatch (R-UT) wants Associate Justice Elena Kagan to recuse herself from the health care litigation if it makes it to the Supreme Court.  Sen. Hatch noted that the Associate Justice was Solicitor General in the Obama administration while the law was passed.

Apparently in response, 44 Democrats have called for Associate Justice Clarence Thomas to recuse himself from the case because of his wife's lobbying activities for Conservative groups opposed to the law.

It shold be noted that the health care reform litigation has not yet reached the Circuit Court of Appeals.  There are four decisions by U.S. District Courts, two in favor and two opposed, and all four are being appealed.

But Virginia Attorney General Ken Cuccinelli (R) is moving for expedited review by the Supreme Court. Mr. Cuccinelli wants the Court to hear the appeal directly from the District Court, without waiting for the Circuits to weigh in. In an interview at George Washington University, Associate Justice Ruth Bader Ginsberg noted the Court rarely steps in before the Circuit Courts do.

All of this seems to be about tweeking the Court for the health care decision.  Republicans think they stand the best chance if the case is heard by the existing Court with its convservative majority.  Democrats want to delay the hearing in the hope that the composition of the court might change.  Utlimately, everyone seems to believe that Judge Anthony Stevens, the most moderate judge in the conservative majority, is the swing vote in what is likely to be a 5-4 vote.

A small screen variation is playing out in New Jersey, where the Democratic controlled Senate voted 21-3 to to urge state Supreme Court Justice Roberto Rivera-Soto to resign if the Assembly doesn't impeach him. There are no plans in the Assembly (also controlled by Democrats) for impeachment, so the vote is largely symbolic.

The dispute grows out of Gov. Chris Christie's (R) decision to not reappoint Justice John Wallace to the Court.  The unusual move was widely interpreted by Democrats as an assault on the independence of the Court.  Observers also noted that  Judge Wallace is a Democrat and the only African-American Justice. Democrats were further incensed because Justice Wallace would have reached mandatory retirement age in March, 2012, so the Governor could have reappointed him and replaced him later in his first term.

Governor Christie nominated Ann Paterson to Justice Wallace's seat, but Senate President Steven Sweeney (D-Gloucester) refused to schedule confirmation hearings until after Justice Wallace's retirement date.  In the meanwhile, Chief Justice Stuart Rabner temporarily appointed Appellate Judge Edwin Stern to Justice Wallace's seat.

Justice Rivera-Soto believes the appointment of Judge Stern is unconstitutional.  He first announced he would not participate in any case in which Judge Stern participated.  He quickly changed his position to not participating in any case in which Judge Stern's vote affects the outcome.  Justice Rivera-Soto did not explain how he would determine whether that condition exists.

Justice Rivera-Soto - a Republican and the Court's first Hispanic Justice - recently announced he would not seek reappointment at the end of his first term later this year. He is widely considered the most conservative Justice on the Court, and was censured in 2007 for trying to use his influence in a case involving his son.

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