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Kagan to Weigh Recusal From Health-Law Challenges on `Case-by-Case' Basis

Elena Kagan told Republicans on the Senate Judiciary Committee that, if confirmed to the U.S. Supreme Court, she would decide on a case-by-case basis whether to recuse herself from considering challenges to the new health- care overhaul.

Kagan, who as U.S. solicitor general represents the Obama administration in high court arguments, said she has had almost no role in the government’s response to a suit challenging the health-care law filed by states. Judiciary Committee Republicans pressed her to say whether as a justice she would disqualify herself.

“I neither served as counsel of record nor played any substantial role” in the case, Kagan wrote to Senator Jeff Sessions of Alabama and other Republicans on the panel. “I 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.”

More than 20 states, led by Florida, oppose the health- care law signed by President Barack Obama in March. They say the federal government lacks the authority to require almost all Americans to purchase a health insurance policy or pay a fine if they don’t.

Kagan said that while she attended “at least one meeting” of administration officials where the litigation was “briefly mentioned,” she was never asked her views on the case or reviewed any government court papers in the dispute.

The Judiciary committee will vote tomorrow on Kagan’s nomination to the Supreme Court, in time for her to be confirmed by early August. That would allow two months before the beginning of the next court term on Oct. 4.

Kagan, 50, was nominated by Obama on May 10 to replace Justice John Paul Stevens, who retired from the nine-member court. Kagan formerly was dean of Harvard Law School and worked for four years in President Bill Clinton’s White House as a lawyer and policy adviser.

To contact the reporter on this story: Laura Litvan in Washington at

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