The next issue is will Kagan have to recuse herself....
Prediction: She wont.
Not for any reason that resembles logic or precedence. It is simply political expedience. She will dress it up in some way or other, or her supporters. But Dems only care about power, not fairness, legality or anything else.
How can she not recuse herself when she, as his Solicitor General, was one of the President's chief legal advisors when they were putting this boondoggle together? How could she ever claim to be objective and impartial now?
How could she claim the Law was Constitutional with a straight face in the first place?