Opponents of Supreme Court nominee Elena Kagan have a new focus: whether Kagan should recuse herself, if confirmed, in a case regarding Democrats' recent healthcare overhaul.
The editorial board of The Wall Street Journal raised the question this morning, and the conservative Judicial Crisis Network sent a letter to members of the Senate Judiciary Committee today arguing that Kagan “must recuse herself” if the Supreme Court ends up hearing a case brought by some state attorneys general.
Now, Republicans on the Judiciary Committee have put the same concerns in writing, sending a letter to Kagan today with 13 questions about her role in the healthcare debate. The letter (PDF) was signed by all seven GOP members of the committee.
Among the Republicans’ questions: Was Kagan ever at a meeting in which the attorneys general lawsuit, filed March 23, was discussed? Was she ever asked her opinion regarding the constitutionality of proposed healthcare legislation? And what duties is she now performing as solicitor general?
The letter doesn’t draw any conclusions about whether Kagan should recuse if she’s confirmed and if the case makes its way to the Court. Instead, the senators write, they are “concerned about the standard you would use to decide whether to recuse yourself from litigation you participated in as Solicitor General. 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 U.S. Justice Department’s Civil Division is handling the federal government’s defense of the new law, according to court filings. A White House spokesman did not immediately respond to a request for comment on the senators’ letter.