Would Elena Kagan bow out of a health-care reform case?

Republican senators are asking Elena Kagan about her potential involvement, as solicitor general, in setting the strategy to defend the health-care reform law from court challenges. Ms. Kagan is now a nominee for the Supreme Court.

By , Staff writer

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    Supreme Court nominee Elena Kagan testifies on Capitol Hill in Washington, in this photo taken June 30. GOP senators are asking about Kagan's involvement, as solicitor general, in setting up strategy to defend the health care reform law from court challenges.
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Republicans on the Senate Judiciary Committee are requesting more information about Solicitor General Elena Kagan’s suspected involvement in setting the legal strategy to defend President Obama’s health-care reform law from constitutional challenges in the courts.

The effort appears aimed at forcing Ms. Kagan, who is now a Supreme Court nominee, to pledge to step aside and not participate in what could become a landmark case should it reach the high court.

The extent of her involvement, if any, in the case is unclear.

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During the confirmation hearings, Sen. Tom Coburn (R) of Oklahoma asked Kagan if there was any time as solicitor general that she’d been asked to express an opinion on the legal merits of the health-care bill.

“There was not,” she responded.

Some Republican senators, opposed to the heath-care bill, say they find that hard to believe.

“Elena Kagan was in the unique role of being the nation’s top lawyer, and the American people have the right to know what role she played in defending this unconstitutional law,” Sen. Orrin Hatch (R) of Utah said in a statement Tuesday.

“I do not believe the president is entitled to launch onto the Supreme Court a political loyalist who will be a legal rubber stamp for anything that gets proposed,” Sen. Jeff Sessions (R) of Alabama said on the Senate floor Wednesday.

At issue is to what extent Kagan was consulted or offered strategic advice in the government’s decision to fight two lawsuits filed by attorneys general seeking to have a federal judge declare the new health-care reform law unconstitutional.

As solicitor general, Kagan is one of the administration’s top constitutional lawyers and the government’s chief advocate before the Supreme Court. It would be the solicitor general’s job to defend the law should such a legal challenge rise to the high court through the appeals process.

The two challenges to the heath-care law have been filed by attorneys general in Florida and Virginia. Government lawyers have filed briefs urging that both lawsuits be dismissed. The cases are pending.

Although some had expected extensive discussion of the constitutionality of the president’s health-care reform effort during Kagan’s confirmation hearings two weeks ago, it was not a frequently discussed issue. But now, with the Judiciary Committee set to vote next Tuesday on whether to send Kagan’s nomination to the full Senate with a recommendation to confirm her, all seven Republican committee members want more information.

“We are concerned about the standard you would use to decide whether to recuse yourself from litigation you participated in as solicitor general,” the seven senators said in a letter sent Tuesday to Kagan. “In particular, we are concerned about litigation that was clearly anticipated, but had not yet reached the point where your approval was sought for filings or pleadings.”

The senators pose 13 questions, seeking to discover the extent of Kagan’s interactions within the administration on the health-care legal issue.

Question 9: “Have you ever offered any views or comments regarding the underlying legal or constitutional issues related to any proposed health care legislation ... or the underlying legal or constitutional issues related to potential litigation resulting from such legislation?”

Within moments of the health-care reform bill becoming law in March, lawsuits were filed to have it struck down. In addition to months of policy debate, the measure had sparked a vigorous debate among constitutional scholars over whether it would survive a Supreme Court challenge.

Kagan has said that as a former solicitor general, she would be obligated to recuse herself from hearing 11 cases currently on the high court’s docket, because she played a role in preparing or presenting the government’s side in each of those cases.

In a written response to questions submitted by Senator Sessions, Kagan added that she would recuse herself in cases in which she approved or denied a recommendation for action in the lower courts. “I would also recuse myself from any cases in which I did not take such official action but participated in formulating the government’s litigating position or reviewed a draft pleading,” she said.

Kagan added: “In all other circumstances, I would consider recusal on a case-by-case basis.”

In a follow-up question, Sessions asked whether recusal would be appropriate in cases in which Kagan personally participated in discussions about government filings “in any federal court, at any level.”

Kagan replied: “If I personally reviewed a draft pleading or participated in discussions to formulate the government’s litigating position, then I would recuse myself from a case. In my view, this level of participation in a case would warrant recusal.”

She said that even if she was not the formal decisionmaker, but merely gave advice to those making the decision, “in my view this level of participation in the case would warrant recusal.”

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