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Here’s the latest jockeying for position on the constitutionality of the healthcare reform law:

Seventy-four House Democrats have signed a letter to Clarence Thomas asking the Supreme Court justice to recuse himself from any deliberations on the constitutionality of the national health care overhaul, arguing that his wife’s work as a lobbyist creates “the appearance of a conflict of interest.”

….The House Democrats’ letter follows a suggestion made by Sen. Orrin Hatch (R-Utah) last week that Supreme Court Justice Elana Kagan should recuse herself from any consideration of the health care law’s constitutionality because of her previous position as U.S. Solicitor General.

I get that this is mostly just rhetorical jousting, and I get that Democrats are mostly just responding to Hatch. Still, I think it’s a bad idea to be making this argument. We really shouldn’t be promoting either the idea that judges’ spouses need to be apolitical creatures or that judges are responsible for what their spouses do. For starters, even in our current enlightened era it’s a lot more likely for a male spouse to be politically active than a female spouse, which means this kind of argument hurts women a lot more than men. And if it’s true of judges, why not members of Congress too? And legislators? And mayors?

If there’s actual money involved, that’s one thing. But it’s pernicious to suggest that politicians or judges are acting badly if they’re involved in legislation that’s merely supported by their spouse. We should be beyond that by now.

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