Elena Kagan denies 'substantive' discussion of health-care case

Senate Republicans are worried that, as solicitor general, Supreme Court nominee Elena Kagan advised President Obama about litigation against health-care reform – a potential issue if the litigation makes it to the Supreme Court.

Solicitor General Elena Kagan attended at least one meeting where legal challenges to the Obama health-care reform law were mentioned, but there was no substantive discussion of the litigation, the Supreme Court nominee told Republican members of the Senate Judiciary Committee on Monday.

Ms. Kagan, whose nomination is set for a committee vote on Tuesday, made the comment in a three-page written response to 13 additional questions the Republicans submitted last week.

The members, led by ranking Republican Sen. Jeff Sessions of Alabama, were seeking clarification on what role, if any, Kagan played in formulating the administration’s response to lawsuits filed challenging the constitutionality of President Obama’s health care reform law. The questions aimed at determining whether Kagan would have to step aside should the health-care litigation reach the high court, producing a potential landmark decision.

The senators suggested Kagan might have played a larger role than she stated during her testimony before the committee.

In her testimony, Kagan said she was never asked her opinion on the merits of the litigation.

She repeated that assertion in her response on Monday and expanded on it.

“I attended at least one meeting where the existence of the litigation was briefly mentioned, but none where any substantive discussion of the litigation occurred,” she said.

In a series of written questions sent last week, the Senate Republicans wanted to know whether she’d ever been asked for her opinion, ever offered her opinion, ever read or reviewed any filings in the case, ever approved any document, or ever offered her views about underlying legal or constitutional issues related to the health care legal challenge.

She answered all questions in the same way: “No.”

Kagan restated her earlier position on when she would recuse herself from hearing a case on the high court that she worked on as solicitor general. She said she would automatically step aside on any cases in which she served as counsel of record – including the six cases she argued before the high court.

She said she would also recuse herself from cases in which she played a “substantial role,” having approved or denied a recommendation for action and worked on the government’s litigation position.

In all other circumstances, Kagan said, she’d consider recusal on a case-by-case basis.

“In Florida v. US Department of Health and Human Services [one of the health care lawsuits], I neither served as counsel of record nor played any substantial role,” she said. “Therefore, I would consider recusal on a case-by-case basis, carefully considering any arguments made for recusal and consulting with my colleagues and, if appropriate, with experts on judicial ethics.”

Under the rules of the Supreme Court it is left to the judgment of each justice to determine for herself whether recusal is warranted. There are no firm guidelines.

Unlike other appellate courts, when a Supreme Court justice steps aside from hearing a case there is no opportunity to name a replacement. In certain close cases a recusal could determine the outcome of the case.

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