The Wall Street Journal argues that soon-to-be Justice Elena Kagan must recuse herself from any legal challenge to ObamaCare that reaches the Supreme Court:
Recusal arises as a matter of judicial ethics if as a government official she expressed an opinion on the merits of the health-care litigation. This is what she would have to render a judgment on were she to be confirmed for the High Court. It is also the question on which she is likely to have participated given her role at the Justice Department.
The SG is the third ranking official at Justice, and its senior expert on Constitutional issues, so it's hard to believe she wouldn't have been asked at least in passing about a Constitutional challenge brought by so many states. The debate about the suit was well underway in the papers and on TV. The matter surely must have come up at Attorney General Eric Holder's senior staff meetings, which the SG typically attends….
Ms. Kagan would sit as Mr. Obama's nominee on the nation's highest Court on a case of momentous Constitutional importance. If there is any chance that the public will perceive her to have prejudged the case, or rubber-stamped the views of the President who appointed her, she will damage her own credibility as a Justice and that of the entire Court.
Since Obama most likely nominated Kagan because she would cast a deferential vote in favor of his agenda, I'm not sure we're likely to see this recusal happening. But you never know.