MEDIA
07/14/2010 12:47 pm ET Updated May 25, 2011

Senate Republicans On Judiciary Committee Take Their Kagan Cues From Wall Street Journal

Republicans on the Senate Judiciary Committee had a chance to put their questions to Supreme Court nominee Elena Kagan two weeks ago during her confirmation hearings. Yet the editors of the Wall Street Journal apparently didn't think they did a good enough job and so they took to their perch to chide the Republican committee members for leaving "crucial unfinished business" on the table. That unfinished business? "Yaaarrrgle! Repeal the ObamaCare!"

In response to Senate queries, Ms. Kagan has said she'll recuse herself from participating in 11 cases on which she represented the government in her current job as Solicitor General. The challenge to ObamaCare isn't one of them, though the cases brought by Florida and 20 other states were filed in March, well before President Obama announced her nomination on May 10.

Ms. Kagan was never asked directly at her hearings about her role as SG regarding the health-care lawsuits. The closest anyone came was this question from Oklahoma Republican Tom Coburn: "Was there at any time--and I'm not asking what you expressed or anything else--was there at any time you were asked in your present position to express an opinion on the merits of the health-care bill?"

Ms. Kagan: "There was not."

This soon became a thing, on the Internet. And so, the GOP members of the committee decided that they wanted backsies, so that they could ask the questions that didn't occur to them to ask when they had ample opportunity to do so. And, taking their inspiration from John Boehner's celebrated work ethic, they took the WSJ's editors' opinions, and cut and pasted them into a letter.

WSJ: "...[T]here's some crucial unfinished business the Senate should insist on before voting...To wit, she ought to recuse herself from participating as a justice in the looming legal challenges to [health care legislation]."

SJC Republicans' Letter: "...[T]here are some responses that need clarification in order for the Committee to have the information it needs...Notably, we are concerned about the standard you would use to decide whether to recuse yourself from litigation you participated in as Solicitor General."

WSJ: "Though their public chance has passed, Senators can still submit written questions to Ms. Kagan for the record. We hope someone asks her directly whether the legal challenges to ObamaCare ever arose in her presence at Justice, whether she was ever asked her views, and what she said or wrote about the cases."

SJC Republicans' Letter: "Were you ever present at a meeting in which State of Florida v. U.S. Department of Health and Human Services...was discussed?...Have you ever been asked your opinion regarding the merits of or the underlying legal issues in State of Florida v. U.S. Department of Health and Human Services, No. 3:10cv91/RV/EMT (N.D. Fla. Filed Mar. 23, 2010)?...Have you ever been asked about your opinion regarding the underlying legal or constitutional issues related to any proposed health care legislation..."

WSJ: "In response to Senate queries, Ms. Kagan has said she'll recuse herself from participating in 11 cases on which she represented the government in her current job as Solicitor General."

SJC Republicans Letter: "In response to Senator Sessions' Question 1(b)(i), you stated: 'I would recuse myself from any case in which I approved or denied recommendation for action in the lower courts.'"

WSJ: "The closest anyone came was this question from Oklahoma Republican Tom Coburn...'was there at any time you were asked in your present position to express an opinion on the merits of the health-care bill?'"

SJC Republicans Letter: "In response to a question from Senator Coburn at your hearing, you indicated that you had not been asked to express an opinion on the 'merits' of the health care bill (Pub. L. No. 111-148) in your role as Solicitor General."

Of course, there's nothing knit up in the Journal's complaint that's going to derail Kagan's nomination. And as Darren Hutchinson points out, their entire take on the matter amounts to little more than "silliness":

A Wall Street Journal editorial demands that Elena Kagan recuse herself from lawsuits challenging the constitutionality of the healthcare reform legislation. The editors, however, lack a legal basis to demand that Kagan recuse herself.

The Senate cannot make this demand because this would violate the separation of powers. And while federal law might require that she recuse herself from cases in which she was directly involved as Solicitor General, she has already promised not to sit on those cases if she is confirmed.

The Wall Street Journal speculates that Kagan probably offered an opinion on the legality of the healthcare statute -- but, of course, the editors cannot prove this. Lacking any factual basis to argue for recusal, the editors argue that Kagan should recuse herself from cases challenging the legislation because they disagree with her answer to questions regarding the Commerce Clause (which is central to the constitutional issue).

Nevertheless, this demonstrates that Senate Republicans act with astounding alacrity and exactitude whenever a WSJ editorial tells them to do something. (Like, say, not extend unemployment benefits.)

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