One of the most egregious matters likely to come before the Supreme Court in the near future is the constitutionality of healthcare reform. It looks like the senators failed to nail down whether a Justice Elena Kagan’s recusal from the case would be demanded by ethical considerations.

 Kagan was asked if she had expressed an opinion on the merits of the legislation during the debates. Wrong question. The Wall Street Journal notes:

Regarding a potential recusal, that’s not the right question. Ms. Kagan was unlikely to have been consulted on the merits of health-care policy, and even if she did express an opinion on policy this would not be grounds for recusal. The legal precedents on that are clear.

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.

We need to get this straight, as this case could determine what kind of nation we are from now on.