This is a rush transcript from "On the Record," November 16, 2011. This copy may not be in its final form and may be updated.
GRETA VAN SUSTEREN, FOX NEWS HOST: The future of the nation's health care law is at is a stake. And tonight, big questions about potential conflicts of interest in the Supreme Court. Now, there are mounting calls for two Justices to recuse themselves from deciding whether the new health care law is constitutional or not constitutional.
Republican Senator Jeff Sessions is leading the charge against President Obama's appointee Justice Elena Kagan. Senator Sessions says he is deeply disturbed about Justice Kagan's earlier role when she was the solicitor general in getting the health care law passed. And coming under pressure from the left to disqualify himself is Justice Clarence Thomas. Now, Justice Thomas's wife worked for a group opposing the health care law.
Criminal defense attorneys Ted Williams and Bernie Grimm joins us both. Bernie, all right, Justice Kagan and Justice -- should either one of both of them disqualify themselves from considering the health care law?
BERNIE GRIMM, CRIMINAL DEFENSE ATTORNEY: Kagan no, Thomas yes. And that's because Thomas has a financial interest because when his wife reportedly made a lot of money doing this. So when your wife puts bread on the table and you're about to decide a case, whether you're going to continue to eat or not, you have to get off the case.
VAN SUSTEREN: Ted?
TED WILLIAMS, CRIMINAL DEFENSE ATTORNEY: Yes, I believe that there's a possibility that both should recuse themselves. Anytime a Supreme Court Justice may not be able to be impartial when it comes to a case, then that person should recuse.
And what do I mean by that? When we look at Justice Thomas here, just the smell, should we say, of the financial interest in which his wife has in trying to overturn what we define as "Obama care," that in and of itself means, I believe, that she should -- or that he should recuse himself.
Now, as it pertains to Justice Kagan, well, when she came up before the Senate for her confirmation hearing, she used a word that she was not substantially involved in the process of "Obama care." Well, there have been quite a few e-mails that have come out that showed that she's had some involvement in -- or that could be definitively more than just substantial, Greta.
VAN SUSTEREN: All right. Now, in terms of -- I'll tell you what I think. In terms of both of them, I think they both should disqualify themselves. I know it's a very close case, and we never like it when a Supreme Court Justice disqualifies himself or herself from such an important case, but it would sort of be an even trade, someone who was appointed by a Republican president, President Bush 41, and someone appointed by President Obama.
Obviously, the financial interest that Justice Thomas's wife has is a financial interest to him, as well. We've got in the -- for lawyers, it's the -- the line is appearance of impropriety. There is that -- maybe perhaps the appearance of a connection that is a little bit too close for both Justices, and we don't need the nation sort of chattering about this and feeling cheated forever.
Let me just say something about the e-mails. There's a March 21st, 2010, e-mail from then solicitor general Elena Kagan to Larry Tribe, Professor Tribe at Harvard University, in which it says, "I hear they have the votes, Larry. Simply amazing."
She's a solicitor general. She is in the position of doing everything she can for her boss to advance his positions. I don't think that she's -- I just think for the appearance of equality (ph) to sort of put the matter to rest, it's an even trade, they both should step away on this one. Bernie?
GRIMM: Yes, Greta, you make a good point because, I mean, the math works with your analysis. If one person gets knocked off and there's a 4-4 tie, then the lower court decision stands. If one person -- if one person gets -- if two people get knocked off, then we're down to seven, and we're in better shape. And at least a close call can be had one way or another on this.
WILLIAMS: And Greta, I don't...
VAN SUSTEREN: But the other thing, too, Bernie -- the other thing, too, Bernie, is that, do we really want a decision by the Supreme Court on such an important issue poisoned by endless chatter of people feeling cheated, saying that these two Justices, depending on which side you are in the debate, but that these two judges were -- should not be deciding the case? It would be an endless discussion and criticism.
This is sort of a safer position so the American people can probably feel better about the process. A lot of people are going to be unhappy no matter what happens. Ted?
GRIMM: Yes, right. I mean, in 30 years, I'll be teaching law school and saying, Let me tell you kids what happened back in 2011, when the Supreme Court did this and these two judges wouldn't recuse themselves.
WILLIAMS: Well, we all know, as lawyers, all you have to do is look at Bush versus Gore. That left such a division in this country. And you're right, the "Obama care," this health care thing, both the right and the left have their various interests in this.
And the bottom line is, I think, for the sake of clarity, that both of these Justices, Kagan and Thomas, and really specifically Thomas, in light of the fact that we can show a financial interest by his wife -- that there should be some recusement.
VAN SUSTEREN: It just -- it just seems to make more sense to play it safe, just to try to sort of calm the waters because there's going to be a lot of unhappiness when this decision comes down by one segment of the population. Bernie, I give you the last word.
GRIMM: Yes, I mean, and this is a landmark. If there's a thing called landmark decisions, believe me, this is it. This just totally ruins -- I mean, years and years and years of legislation that's been put together, and now is going to be wiped off the map perhaps.
VAN SUSTEREN: Well, it depends. If it's unconstitutional, it should go. If it's constitutional, it should stay. But we should at least try to -- try to minimize the dissension and unhappiness afterwards. Ted and Bernie, thank you both.
GRIMM: Thanks, Greta.
WILLIAMS: Thank you.