The Senate Judiciary Committee is scheduled to vote tomorrow (July 20) on the nomination of Elena Kagan for Associate Justice of the Supreme Court. In connection with that vote, the seven Republicans on the committee last week sent Kagan this letter asking 13 questions about her involvement in the ACA litigation and the drafting of the ACA itself. The first paragraph of the letter states, “[w]e are concerned about the standard you would use to recuse yourself from litigation you participated in as Solicitor General. In particular, we are concerned about litigation that was clearly anticipated, but had not yet reached the point where your approval was sought for filings or pleadings.”
From all public appearances, Kagan does not seem to have played any role in the filings in the Virginia or Florida lawsuits. The government filed its substantive briefs in those cases well after President Obama had nominated her for the Court. And when asked by Senator Coburn at her confirmation hearing, Kagan stated that “[t]here was not” any time at which she had been asked to give her opinion on the constitutionality of the ACA. Nonetheless, it is certainly conceivable that the Solicitor General would be included in discussions within an administration about the constitutionality of pending legislation, particularly legislation of this significance. (It is worth noting, though, that this type of function is typically carried out by the Office of Legal Counsel within the Department of Justice, not the Office of the Solicitor General.)
In any event, it is clear that the Republicans are attempting to lay the groundwork a Kagan recusal if and when the constitutionality of the ACA reaches the Supreme Court. (The precise circumstances in which a Justice should recuse are notoriously unclear, as the Scalia-Cheney-duck hunting episode from a few years ago demonstrated.)
Warren Richey wrote this article for the Christian Science Monitor about the letter.
UPDATE: Kagan has responded to the 13 questions in writing, though I have yet to locate her letter. The AP is running this story on it. The gist is that, because she "never served as counsel of record nor played any substantial role" in the Florida v. HHS, she "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."