Should Elena Kagan be recused from hearing or participating in the upcoming proceedings to determine the Constitutionality of the Obama Health Care Act? Her personal and professional participation in crafting this legislation is a matter of record. She served as Obama's Solicitor General and counseled him during the drafting of his Health Care Law. She's on record as being proud and pleased that it passed Congress. According to 28 U.S.C. § 455 : US Code - Section 455: Disqualification of justice, judge, or magistrate judge: (a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. (b) He shall also disqualify himself in the following circumstances: (1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding; (3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy.