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Wednesday, April 7, 2010 as of 11:14 AM ET

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Lee Ross

Supreme Court

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Kagan Says She’ll Hear Health Care Lawsuit

July 19, 2010 - 1:59 PM | by: Lee Ross

In a final bit of written testimony before the Senate Judiciary Committee votes on her nomination Tuesday, Elena Kagan indicates that she will not step aside from a case challenging the controversial health care law if she’s confirmed to a seat on the Supreme Court.

Kagan’s comments were prompted by a letter sent to her by all seven committee Republicans asking her about her role as Solicitor General in developing a strategy to defend the federal government from a lawsuit—still in its preliminary stages–challenging the health care law that passed earlier this year. It is widely expected that at least one lawsuit against the measure will make it to the Supreme Court in the coming years.

The new testimony reiterates Kagan’s previous declaration that she will recuse herself from any case in which she was the counsel of record or played a substantive role. While Kagan says she’ll consider recusal matters on a case-by-case basis, she says her limited role in the state of Florida’s lawsuit against the health care legislation–attendance at one meeting where the case was “briefly mentioned”–doesn’t rise to the level of involvement Kagan says is needed for recusal.

There’s little drama leading up to Tuesday’s vote which is expected to break along partisan lines and move Kagan one step away from a lifetime appointment to the bench. A final vote from all senators is expected before they break in early August for their summer recess.

South Carolina Senator Lindsey Graham may be the only senator on the 19 member panel to break ranks on the committee vote. The Republican spoke well of Kagan during the hearing and was the only committee member of his side to vote for now Justice Sonia Sotomayor in 2009.

When asked last week how he’d vote, a grinning Graham said he was undecided but told Fox’s Trish Turner that “all I can say is, I think she did well. Stay tuned.”

Assuming she’s confirmed, Kagan’s workload on the Supreme Court will be a bit lighter than the other justices–at least in her first year. That’s because she’s already said she’ll sit out of at least 11 cases (see full list below) set for arguments before the justices.

Earlier this month, in response to written questions from the committee’s top Republican, Sen. Jeff Sessions, (R-Ala.), Kagan said she will recuse herself from hearing these cases because of her work on them as Solicitor General. “In these cases, I was substantially involved in the preparation of each pleading on which my name appears,” Kagan told Sessions. “And in the subset of these cases in which the government filed a petition for writ of certiorari, I approved the decision to file that petition.”

This means Kagan will not hear approximately 1/7 of the cases the Court will hear in its term that starts in October. Justices often recuse themselves from cases that they’ve previously considered. Their decision is not grounded in policy or rules but rather custom and a desire by the Court and the justices to avoid the appearance of bias or partiality. Sometimes the decision of a particular justice to take part in a case (or sit out) generates debate.

Kagan has also said she will not participate in a controversial case involving the Defense of Marriage Act if it comes before the Supreme Court.

There are usually several cases each term that are heard by fewer than all nine justices. If there’s an even split, the decision of the lower court is affirmed but the ruling is not given the weight of precedent that normally comes with decisions of the high court.

Here is a list of cases currently before the Supreme Court that Kagan has said she will not consider:

Abbott v. United States

Michigan v. Bryant

NASA v. Nelson

Flores-Villar v. United States

United States v. Tohono O’odham Nation

Costco v. Omega

Staub v. Proctor Hospital

Williamson v.Mazda Motor of America, Inc.

Sossamon v. Texas

Mayo Foundation for Medical Education and Research v. United States

Pepper v. United States

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