Terry Jeffrey

What are the odds that while serving as President Barack Obama's solicitor general, Elena Kagan never expressed her opinion about lawsuits that were filed challenging the constitutionality of Obamacare?

If Kagan did express her opinion, federal law requires the she be disqualified from those cases if she is confirmed as a justice and they come before the Supreme Court.

In a court often divided 5-4 -- and where Kagan is replacing Justice John Paul Stevens, one of the court's most reliable liberal votes -- the law in question may well cost Obama the deciding vote on the constitutionality of the most monumental piece of legislation he will ever sign.

On March 23, Obama signed his health care law forcing all Americans to buy health insurance. The same day, Florida filed suit challenging the constitutionality of the law. Many other states joined Florida in the suit. Virginia filed a constitutional challenge of its own on the same day.

Seven weeks later -- on May 10 -- Obama nominated Kagan to the Supreme Court. Was Kagan mum on the legal challenges to Obamacare all those seven weeks?

Twenty-eight U.S. Code 455 says: "(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. (b) He shall also disqualify himself in the following circumstances: ... (3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy."

Professor Ronald Rotunda, a legal ethics expert who teaches at the Chapman University School of Law, testified on the ramifications of this law during the Senate Judiciary Committee's confirmation hearings on Kagan. Rotunda told the committee Kagan would need to recuse herself from any case in which at any time during her tenure as solicitor general she had expressed an opinion on its merits.

Rotunda said it did not matter whether Kagan was ever formally a counsel in the case or whether she expressed her opinions in writing or only verbally.

"In short, Solicitor General Kagan should disqualify herself in all instances where participated as counsel, 'adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy,'" Rotunda told the committee in his written testimony (emphasis in original). "Her disqualification does not limit itself to cases where she is counsel of record."

Terry Jeffrey

Terence P. Jeffrey is the editor-in-chief of CNSNews

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