As reported in several media outlets this week – including The Hill, Associated Press, and MSNBC – Senator Orrin Hatch (R-UT) told Greta van Susteren of FOX News this past Wednesday that  Supreme Court Justice Elena Kagan “probably should recuse herself” from any case that reaches the Court challenging the health care reform law:
It is going to be life or death for that health care bill. And a lot of people are predicting to go forth with Kennedy making the determination.

I think that Kagan, who was the solicitor general at the time this was all done, probably should recuse herself, which means it might not be resolved by the Supreme Court. That means the lower court decision will be the acting law.
Apart from the fact that Senator Hatch, as we show below, has no legitimate basis for making this assertion, it is a premature assertion, to say the least.  No case involving a challenge to the health care reform law is anywhere near the Supreme Court, and in fact none may ever get there if the Courts of Appeal all reject the challenges, as they should.  Nonetheless, and without foundation, a sitting Senator who opposes the Affordable Care Act is already suggesting that a Justice should recuse herself from hearing any challenge to it, a troubling assault on the independence of the judiciary.

During her confirmation hearings last summer before the Senate Judiciary Committee – a Committee of which Senator Hatch was and still is a member – then-Solicitor General and Supreme Court nominee Elena Kagan was asked about recusal generally and, more specifically, about recusal from any case involving the health care reform law.  On Day 2 of her testimony, General Kagan explained that, if confirmed to the Court,
I would recuse myself from any case in which I’ve been counsel of record at any stage of the proceedings, in which I’ve signed any kind of — of brief….  So that’s a flat rule. …In addition to that, I said to you on the questionnaire that I would recuse myself in any case in which I’d played any kind of substantial role in the process… I think that that would include any case in which I’ve officially formally approved something.
Specifically in connection with the Affordable Care Act, Senator Hatch and his Republican colleagues on the Committee asked General Kagan a number of written questions obviously intended to determine whether there would be any basis upon which Kagan, if confirmed, would have to recuse herself from a case challenging the constitutionality of the health care law.  Kagan’s answers, including those quoted below, demonstrated her lack of involvement as Solicitor General in then-pending litigation over the Act and in any discussions regarding legal issues arising from it, and provided no basis for recusal if she were to be confirmed as a Justice:
1. Were you ever present at a meeting in which State of Florida v. U.S. Department of Health and Human Services, No. 3:10cv91/RV/EMT (N.D. Fla. Filed Mar. 23, 2010) was discussed?

Response:

I attended at least one meeting where the existence of the litigation was briefly mentioned, but none where any substantive discussion of the litigation occurred.

2. Have you ever been asked your opinion regarding the merits of or the underlying legal issues in State of Florida v. U.S. Department of Health and Human Services, No. 3:10cv91/RV/EMT (N.D. Fla. Filed Mar. 23, 2010)?

Response:

No.

3. Have you ever been asked your opinion regarding any other legal issues that may arise from Pub. L. No. 111-148 [the Affordable Care Act]?

Response:

No.

4. Have you ever offered any views or comments regarding either the merits of State of Florida v. U.S. Department of Health and Human Services, No. 3:10cv91/RV/EMT (N.D. Fla. Filed Mar. 23, 2010) or the strategy that the United States government should employ in defending Pub. L. No. 111-148?

Response:

No

8. Have you ever been asked about your opinion regarding the underlying legal or constitutional issues related to any proposed health care legislation, including but not limited to Pub. L. No. 111-148, or the underlying legal or constitutional issues related to potential litigation resulting from such legislation?

Response:

No.

9. Have you ever offered any views or comments regarding the underlying legal or constitutional issues related to any proposed health care legislation, including but not limited to Pub. L. No. 111-148, or the underlying legal or constitutional issues related to potential litigation resulting from such legislation?

Response:

No.
Finally, on Day 3 of Kagan’s oral testimony before the Judiciary Committee, Senator Tom Coburn  (R-OK) directly asked Kagan about her involvement as Solicitor General with respect to the Affordable Care Act:
COBURN: Thank you. And my — I have two final questions. One, was there at any time — and I’m not asking what you expressed or anything else — was there at any time you were asked in your present position to express an opinion on the merits of the health care bill?

KAGAN: There was not.
During Justice Kagan’s confirmation hearings, Senator Hatch and his conservative colleagues on the Judiciary Committee took a recusal shot at Kagan with respect to litigation involving health care reform, and got nowhere. Obviously, Justices determine recusal on a case-by-case basis, but there is nothing in Elena Kagan’s confirmation testimony that provides any reason to think her recusal would be warranted in any case involving the Affordable Care Act, were any such case ever to reach the Supreme Court.  Senator Hatch ought to cease making baseless claims about a sitting Justice that only serve to politicize America’s courts.