Indicating there’s little chance she would recuse from the issue if confirmed, Supreme Court nominee Elena Kagan says she did not advise the Obama administration on the constitutionality of its healthcare overhaul.
Kagan addresses the issue in written answers she sent on Monday to Republican members of the Senate Judiciary Committee.
“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,” Kagan writes, referring to a lawsuit filed by several state attorneys general.
Republican senators raised the issue this month, after the editorial board of The Wall Street Journal suggested that Kagan would have to recuse from the issue if it came before her as a justice. The senators sent Kagan a letter with 13 questions about her role in the healthcare debate.
In her answers (.pdf), Kagan writes that no one ever asked her opinion about any legal issues that might arise from the lawsuit. She also answers “no” to a question about whether she has read or reviewed internal documents discussing the case brought by state attorneys general.
One possible reason Kagan was not involved: She reduced her responsibilities about a month before President Barack Obama nominated her to the Court. She writes that, beginning in April, after she learned Obama was considering nominating her, she “ceased attending the Attorney General’s morning meetings.”
“And, to the best of my recollection,” she adds, “I also did not become involved during this time in any other new litigation — either cases filed against the government in the district courts or cases the government filed or was preparing to file in the district courts.”
Kagan writes that she nevertheless “handled the work within the Solicitor General’s Office in the normal way; that is, I served as counsel of record in all filings in the Supreme Court and acted upon all appeal and other litigation recommendations.”
The Judiciary Committee is scheduled to vote on Kagan’s nomination Tuesday.
David Ingram can be contacted at firstname.lastname@example.org.