Kagan Says She Has Never Been Asked and Has Never Offered Her Opinion on Legality or Constitutionality of Any Proposed Health Care Bill

By Terence P. Jeffrey | July 19, 2010 | 5:44 PM EDT

Supreme Court nominee Elena Kagan testifies before the Senate Judiciary Committee on Tuesday, June 29, 2010. (AP Photo/Susan Walsh)

(CNSNews.com) - Solicitor General Elena Kagan, nominated by President Barack Obama to the U.S. Supreme Court, said in written responses provided to the Senate Judiciary Committee today that she has never been asked--and has never offered--her opinion about the underlying legal or constitutional issues of any proposed health-care legislation--including the health-care bill signed into law by President Barack Obama, in March.
An affirmative answer might have forced Kagan to recuse herself--if she is confirmed to the Court--from ruling in cases that challenge the constitutionality of Obamacare. The states of Florida and Virginia both filed such suits on the same day that President Obama signed the bill, and Florida has been joined in its suit by many other states. The issue is now virtually guaranteed to be headed to the Supreme Court.

“Have you ever offered any views or comments regarding the underlying legal or constitutional issues related to any proposed health care legislation, including but not limited to Pub. L. No. 111-148 [Obamacare], or the underlying legal or constitutional issues related to potential litigation resulting from such legislation?” the seven Republican senators on the Judiciary Committee asked Kagan.
“No,” said Kagan.
She gave the same “no” answer to the question of whether she had ever been “asked” her opinion about the legal or constitutional issues of any health-care legislation, including Obamacare.
Under federal law, Kagan would be disqualified from ruling as a Supreme Court justice in any case where she had expressed an opinion on the merits while she was serving as a government employee.  If, for example, she had expressed her opinion about the cases filed by Florida and Virginia against Obamacare, she would be disqualified from voting on those cases if she were confirmed to the Supreme Court and they came before the Court.
The relevant law, 28 U.S. Code 455, says: “(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. (b) He shall also disqualify himself in the following circumstances: ... (3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy.”
Last week, all seven Republican senators on the Judiciary Committee signed a letter to Kagan asking her a series of questions seeking to determine whether she had been involved in the administration’s response to the lawsuits filed against Obamacare, or even if she had at any time as solicitor general expressed an opinion on the underlying legal and constitutional issues related to any proposed health-care legislation.

In the written responses to these questions provided to the Judiciary Committee today, Kagan did concede that she had “attended at least one meeting where the existence of the litigation was briefly mentioned,” but she said there was not “any substantive discussion of the litigtation” at that meeting, and that she has not discussed the litigation at any time.

During Kagan’s confirmation hearings, the Senate Judiciary Committee took testimony on the issue of recusals from Prof. Ronald Rotunda, an expert in legal ethics who teaches at the Chapman University School of Law. Rotunda told the committee that he believed 28 U.S.C. 455 would disqualify Kagan from participating in any case that came before the Supreme Court if, when she was solicitor general, she had so much as expressed a verbal opinion about the case.
“In short, Solicitor General Kagan should disqualify herself in all instances where participated as counsel, ‘adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy,’” he told the committee. “Her disqualification does not limit itself to cases where she is counsel of record.”
“In all of these circumstances, it does not matter if her advice was oral or written, because the statute does not draw that distinction,” Rotunda told the committee.
In a written questionnaire she filled out for the committee, Kagan had said she would comply with the “letter and spirit” of 28 U.S.C. 455.