We saw this one coming, but Sen. Jeff Sessions finally has given the most explicit description yet of why he thinks Supreme Court nominee Elena Kagan has a problem when it comes to health care reform.
Sessions (R-AL), the ranking member on the Senate Judiciary Committee (which is tasked with Kagan’s nomination next Tuesday), is now suggesting that Kagan can’t sit on the bench and decide on state challenges to health care reform because as solicitor general, she must have spoken with the Obama administration about the lawsuits.
“It is all but inconceivable that, when the States challenged the new health care law in March 2010, Ms. Kagan did not participate as counsel or adviser to the administration on the matter, or express her opinion on the case’s merits at that time, or participate in any discussions regarding strategy and arguments,” Sessions said Tuesday — when the Judiciary panel agreed to postpone the vote another week.
The multiple state lawsuits suggesting health care reform is an unconstitutional violation of the commerce clause (a little more on that here) will inevitably land in the Supreme Court. Kagan answered multiple questions about this during her confirmation hearings, insisting that she did not counsel President Obama on the matter.
In the follow-up questions for the record, senators asked if she’d recuse herself on cases with which she was involved and under what circumstances. In her answer to Sessions’ question on the topic, Kagan noted the list of 11 cases she’d avoid sitting in on, and added this response:
If I personally reviewed a draft pleading or participated in discussions to formulate the government’s litigating position, then I would recuse myself from a case. In my view, this level of participation in a case would warrant recusal.
Kagan has said several times the health care lawsuits do not fall in that category. But Sessions is still doubtful. Watch his comments:
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