Kagan Would Go Case-By-Case in Health Recusal

Supreme Court nominee Elena Kagan testifies on Capitol Hill in Washington, Tuesday, June 29, 2010, before the Senate Judiciary Committee hearing on her nomination. (AP Photo/Alex Brandon) AP Photo/Alex Brandon

Responding to a final GOP challenge, Supreme Court nominee Elena Kagan said Monday that she would weigh recusing herself from matters related to the new health care law on a case-by-case basis.

Kagan was responding to a list of questions from Senate Judiciary Committee Republicans about her involvement as solicitor general in defending the health law. The committee is to vote on her nomination Tuesday, and in all likelihood approve it, after the GOP minority delayed the vote for a week to get her answers.

Kagan, President Barack Obama's second Supreme Court nominee, was solicitor general while the health law was being passed and as states sued the federal government in March to challenge its constitutionality.

She told Republicans in written responses to 13 questions that she had no involvement in developing the government's response to the lawsuit and never was asked her views or offered them.

She said she attended at least one meeting where the litigation was briefly mentioned, and that the Justice Department filed a number of documents in the case during her tenure, but that she had no firsthand knowledge of any of the filings.

Kagan reiterated what she said during her confirmation hearings: She intends to recuse herself in cases where she served as lead counsel or played a substantial role.

In all other circumstances she would consider recusal on a case-by-case basis, she said. That would include Florida v. U.S. Department of Health and Human Services, the lawsuit by some 20 states that questions whether the federal government can require individuals to purchase health care insurance and fine those who fail to do so.

"I never served as counsel of record nor played any substantial role" in the case, Kagan wrote. "Therefore, I would consider recusal on a case-by-case basis, carefully considering any arguments made for recusal and consulting with my colleagues and, if appropriate, with experts on judicial ethics."
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