Supreme Court Justice Elena Kagan “should recuse herself from cases considering whether the new healthcare law is constitutional, according to Sen. Orrin Hatch (R-Utah),” The Hill reports.
Hatch, a former chairman of the Senate Judiciary Committee, said that it would be most appropriate for Kagan to decline participation in cases on healthcare reform. Kagan served as President Obama’s solicitor general before being named to the high court.
"I think that Kagan, who was the solicitor general at the time this was all done, probably should recuse herself, which means it might not be resolved by the Supreme Court," Hatch said Wednesday evening on Fox News. "That means the lower court decision will be the acting law."
If Kagan “were to recuse herself, it would presumably tip the court’s scales toward conservatives, since Kagan is seen as a more liberal jurist likely to uphold the law.”
But Hatch, in speculating on how other justices might vote, said he wasn’t sure that the outcome would necessarily be a close, 5-4 decision.
"I’m not convinced it has to go 5-4," he said. "I actually believe there are justices like Breyer and Ginsburg, and of course Kennedy, who will go with the four justices who are considered a little more conservative."