One of my prayers concerning the Elena Kagan hearings has been, "If she is confirmed to the Court, restrain her activist voice and influence from swaying the Court against defending the preborn."
Last week Republicans on the Senate Judiciary Committee delayed a vote on Kagan and submitted a questionnaire that dealt with her involvement on the Healthcare takeover that was signed into law in March. The point of the questions was to establish whether or not Kagan would recuse herself from any court case challenging Healthcare that might find its way to the Supreme Court. If it could be established that she had been involved or privy in any way to any legal challenges on the front end, it would be unethical for her to sit as Judge in those cases on the back end. In essence, she’d have to sit out on those cases.
On Monday, the day before she was affirmed in Committee 13 to 6, her responses came back indicating that she would NOT recuse herself on cases dealing with the Healthcare takeover. CQ reports:
(Kagan) answered that she had not been asked her opinion about the merits of or underlying issues in the legal challenge, or about other issues that might arise from enactment of the law. Nor, she said, had she offered any views about the case or about the government’s response.
(Kagan) acknowledged that she had attended "at least one meeting where the existence of the litigation was briefly mentioned, but none where any substantive discussion of the litigation occurred."
In response to a question about whether she would recuse herself, (Kagan)
reiterated the standard she had previously laid out during her hearing: She would not participate, she said, in any case where she had served as counsel of record or in a case in which she "played a substantial role."
Kagan went on to say 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." Senator Graham (R-SC) was the lone Republican on the committee that voted in favor of Kagan on Tuesday. As of this posting there are currently 19 committed Nays (all Republican) and 30 committed Yeas. Senators Lindsey Graham (R-SC) and Richard Lugar (R-IN) are siding with Democrats in favor of confirming Kagan as the next Supreme Court Justice.
You can keep an eye on the vote count HERE. Expect a full vote on the Senate floor before August recess.
FYI- There will be A LOT of Supreme Court cases challenging the Healthcare Takeover in the next few years.