People who appear on Fox News have a bad habit of getting their facts all mixed up in their zeal to promote their Right Wing agenda. The latest example of this has to do with Fox News' coverage of a debate over which Supreme Court justice should or should not recuse himself or herself from hearing the Obamacare case. Democrats want Clarence Thomas to recuse himself because his wife takes money from Conservative groups who are working to repeal Obamacare. Conservatives and Fox News want to get Supreme Court Justice Elena Kagan to recuse herself from the health care case because she worked in the Obama administration when the law was passed and sent an email that suggests she was pleased that the law passed.
Fox News national correspondent, Steve Centanni said this of Kagan “If she were closely involved with the health care bill, she would legally be required to recuse herself from the case. According to the Constitution a justice must recuse even if he or she quote, ‘…expressed an opinion concerning the merits of the particular case in controversy.’ That’s from Article 28 of the Constitution.” See Centanni on Fox News saying this at this link: http://www.newscorpse.com/ncWP/?p=5801
Now, you probably already recognize the problem with Centanni’s statement. Right? Well, actually there are two problems. First, there is no such language in the Constitution. Second, the Constitution does not have an Article 28. In fact, it has 21 fewer. Check out the official transcript of the Constitution here: http://www.archives.gov/exhibits/charters/constitution_transcript.html
Well, maybe Centanni just got all caught up in the excitement of getting a “liberal” justice. So he said, “Constitution” when he really meant U.S. Code. It does have an Title 28 and Section 455, Sub-section 3 of Title 28 does say a justice shall disqualify himself “Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy.” However a large number of legal experts have said that there is no reasonable interpretation of this section to suggest that Kagan’s role in the administration which had no direct involvement with the health law and any comments she might have made would require her to recuse herself. See http://mediamatters.org/blog/201111150024
However, the same statute appears to require the recusal of Justice Clarance Thomas. Sub-section 4 states that a justice must disqualify himself if…
“(4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding.”
So Fox News is wrong about the Constitution, wrong about the article, wrong about the meaning of the law and wrong about which Justice really has a conflict of interest when it comes to hearing a case about Obamacare. Other than that……