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.
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
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.
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-
"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
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. …