White House not likely to ask Kagan to step aside

ATLANTA — Don’t expect The White House to call on Supreme Court Justice Elena Kagan to recuse herself from deciding the Constitutionality of the health care law Congress passed last year.

U.S. Rep. Tom Price, R-Ga., is among those calling on Kagan to recuse herself when the law appears before the Supreme Court. Concurrently, some are also calling on Justice Clarence Thomas to re himself from the deliberations.

“My understanding of how this works is that it’s up to each justice to decide whether he or she should be recused,” White House spokesman Jay Carney told a press briefing, according to a transcript.

“Just speaking of Justice Kagan, because obviously this President nominated her and that confirmation process occurred just last year and we all either participated in it or witnessed it, these issues were raised just a year ago in an expansive confirmation hearing, and they were — these questions were asked and answered both in the hearing itself and in written questions that were responded to in writing,” Carney added. “It’s a mystery to me how this can suddenly be an issue a year later and they want to revisit what they just visited not that long ago.

Kagan served as solicitor general when Congress passed the law. E-mails obtained by Judicial Watch indicate Kagan made positive comments about the law when it was passed.

Georgia is one of 26 states suing over the health care law. The Supreme Court is expected to rule by next summer.

The relevant portion of the transcript:

Q    And the calls for Justices Thomas and Kagan to recuse themselves from overseeing the health care challenge, any response to that?

MR. CARNEY:  Well, I would just say that I believe — my understanding of how this works is that it’s up to each justice to decide whether he or she should be recused.  Just speaking of Justice Kagan, because obviously this President nominated her and that confirmation process occurred just last year and we all either participated in it or witnessed it, these issues were raised just a year ago in an expansive confirmation hearing, and they were — these questions were asked and answered both in the hearing itself and in written questions that were responded to in writing.  It’s a mystery to me how this can suddenly be an issue a year later and they want to revisit what they just visited not that long ago.

Q    Justice Kagan has said —

MR. CARNEY:  Again, as I just said, all this stuff was examined, all of it was — questions were asked, she answered it, and she responded in writing to this.  So I think it sure sounds like a political thing to try to revisit it just a year later.

Q    But the information that was in the email was not available during the confirmation hearings.

MR. CARNEY:  Norah.

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