As the Legal Times‘s Tony Mauro reports today, both the Wall Street Journal editorial board and the Judicial Crisis Network are asking whether Elena Kagan would, if appointed the Supreme Court, be required to recuse herself from cases involving the Obamacare litigation.
The WSJ and JCN ask whether Solicitor General Kagan contibuted to the Obama administration’s internal deliberations as to litigation challenging the constitutionality of Obamacare.  At her hearing, Kagan answered that she hadn’t when Senator Coburn asked her, “was there at any time you were asked in your present position to express an opinion on the merits of the health care bill?”  As the WSJ and JCN note, Sen. Coburn’s precise choice of words was unfortunate, because his reference to the “merits” of the “bill” makes it difficult to discern whether Kagan’s answer referred broadly to all legal questions involving Obamacare — including the implications of litigation.