Back in May, I suggested:
Senate Judiciary Committee members should be sure to ask Solicitor General and Supreme Court nominee Elena Kagan, during her upcoming confirmation hearings, whether she or her office played any part in crafting ObamaCare or the administration’s defense to the lawsuits challenging that law. If Kagan helped to craft either, that would present a conflict of interest: when those lawsuits reach the Supreme Court, she would be sitting in judgment over a case in which she had already taken sides…
If Kagan played a role in drafting ObamaCare or formulating the administration’s legal defense, and is confirmed by the Senate, propriety would dictate that she recuse herself from any challenges to that law that reach the high court.
Committee members didn’t ask her those questions during the hearings, as The Wall Street Journal explains. Fortunately, a letter to Kagan from all seven Republicans on the committee has (exhaustively) remedied that oversight.
Kagan has already told the committee she would recuse herself from any case in which she “participated in formulating the government’s litigating position.” Given that she appears to take an expansive view of Congress’ power to regulate interstate commerce, the best possible outcome for opponents of ObamaCare would probably be for Kagan to join the Court but recuse herself from cases challenging that law.
That would also be the worst possible outcome for the administration. In fact, universal coverage is so important to the Left that if Kagan would leave them with one less pro‐ObamaCare vote on the Court, I wouldn’t be surprised to see President Obama withdraw her nomination. He could then appoint someone as ideologically reliable as Kagan, but who could actually defend the president’s signature accomplishment.
This could get interesting.