Kagan May Have to Recuse on Health Reform

Tuesday, 18 May 2010 10:50 AM

By Dan Weil

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Supreme Court nominee Elena Kagan may have to recuse herself if she joins the court and it considers a case regarding the legality of the new healthcare law.

That’s because as solicitor general in the Obama administration, Kagan may have assisted the White House or Congress in creating the law and a legal defense for it.

“We don’t know for sure whether she would even be able to sit on that [health care law] case,” Carrie Severino, chief counsel for the Judicial Crisis Network, told CNSNews.com

“As solicitor general she’s part of the administration, and there may be cases on which she has already conferred with the president on issues she’s already been involved with. I think the proper role would be for her to recuse herself if that is the case.”

Kagan may have been part of the government’s response to lawsuits by more than 13 state attorneys general challenging the constitutionality of the healthcare reform. The solicitor general defends the federal government in court cases.

In the past, Supreme Court justices have recused themselves from cases in which they were previously involved.

For example, Justice Thurgood Marshall recused himself from 53 cases that related to his service as solicitor general, CNSNews.com reports.

In most of those cases Marshall participated directly, usually signing his name to the arguments used in Supreme Court. But in other cases, Marshall recused himself when he had given advice on the government’s appeal in lower courts.

If Kagan merely provided advice on the constitutionality of health reform, she may have to recuse herself, Ed Whelan, president of the Ethics and Public Policy Center, told CNSNews.com.

“If she gave advice on a specific legal question, even if it weren’t a case pending [before the court] and that particular legal question comes up later, that would be something that ought to trigger a recusal,” he said.

Newsmax contributor Dick Morris says Kagan is unfit to serve on the Supreme Court, in light of her advocacy as solicitor general on the losing side of Citizens United v. Federal Election Commission.

He finds it unfathomable that in that case she contended that books and pamphlets published by companies should be excluded from elections.

“I think anyone that treats the first amendment in that kind of slipshod way shouldn’t be on the Supreme Court,” Morris told Newsmax.TV.

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