"In all of these circumstances, it does not matter if her advice was oral or written, because the statute does not draw that distinction," Rotunda told the committee.
In the written answers Kagan submitted in a questionnaire returned to the Judiciary Committee before Rotunda gave his testimony, Kagan said she would comply with the "letter and spirit" of 28 U.S.C. 455.
"If confirmed, I would recuse in all matters for which I was counsel of record," she said. "I would also look to the letter and spirit of the Code of Conduct for United States Judges (although it is not formally binding on members of the Supreme Court of the United States), the Ethics Reform Act of 1989, 28 U.S.C. 455, and any other relevant prescriptions."
When she testified before the committee, Chairman Patrick Leahy, the Vermont Democrat, asked her when she would recuse herself. In response, Kagan did not cite 28 U.S.C. 455, and her answer to Leahy was somewhat narrower than her answer in the questionnaire. She would recuse herself, she indicated, from cases on which she had been the "counsel of record" and when she had "officially, formally approved something" in a case.
In written questions submitted to Kagan for the record, Sen. Jeff Sessions of Alabama, the ranking Republican on the Judiciary Committee, cited 28 U.S.C. 455 and tried to make Kagan specify in greater detail when she would recuse herself. In response to Sessions, Kagan listed 10 cases coming before the court in its next session on which she had been the "counsel of record" and would thus need to recuse herself. (These do not include the health care cases.) She also conceded she would recuse herself when she had given "advice" on a case.
"If I gave advice about the government's litigating position or the content of a filing, then I would recuse myself from the case," Kagan said in her written responses to Sessions. "In my view, this level of participation in a case would warrant recusal."
On July 13, all seven Republicans on the Senate Judiciary Committee signed a letter to Kagan insisting she answer a series of detailed questions probing whether she was ever involved in the administration's response to -- or discussed -- Florida's suit against Obamacare.
The senators informed Kagan that her answers to their questions "are essential to the Committee's process of thoroughly reviewing your record prior to making our recommendation to the full Senate on your nomination." They are also essential to letting the American people know whether or not the Supreme Court will be a rigged jury when the constitutionality of Obamacare comes up.