Supreme Court Justice Elena Kagan should recuse herself from cases considering whether the new healthcare law is constitutional, according to Sen. Orrin HatchOrrin HatchIRS: Annual unpaid tax liability was 8B Hatch asks Treasury for memo that decreases transparency of tax rules Senators roll out changes to criminal justice bill MORE (R-Utah).
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."
Hatch's remark reflects the political gamesmanship that's sure to surround the Supreme Court's expected consideration of healthcare reform at some point.
A federal judge issued a ruling earlier this week striking down the law, Obama's signature domestic initiative, as unconstitutional. Federal circuit courts are expected to hear the administration's appeals of that and other decisions, and whichever side loses in those cases is expected to appeal to the Supreme Court.
Already, some lawmakers are asking for the Supreme Court to expedite its review of the new healthcare law, especially as it remains a potent political issue for Congress and regulators.
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."
The House voted to repeal the healthcare law in January, but the Senate on Wednesday defeated a repeal effort.