Would Elena Kagan Bow out of a Health-Care Reform Case?

By Richey, Warren | The Christian Science Monitor, July 15, 2010 | Go to article overview

Would Elena Kagan Bow out of a Health-Care Reform Case?


Richey, Warren, The Christian Science Monitor


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 courts.

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- care bill.

"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 pending.

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. …

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