WASHINGTON — Republican Sen. Orrin Hatch, an opponent of the recently enacted health care overhaul, says Justice Elena Kagan should not take part in the widely expected Supreme Court consideration of the new law.

Hatch’s call is part of the broad legal and political maneuvering on both sides for the most favorable conditions surrounding court review of President Obama’s signature domestic policy accomplishment.

His comments came the same week that Virginia Attorney General Ken Cuccinelli said he plans to file a motion to take the case directly to the Supreme Court, bypassing an appeals court, after he won a federal judge’s ruling in December against the law’s requirement that most Americans buy health insurance.

On Monday, a second federal judge declared the law unconstitutional. Two other judges have upheld it.

Hatch said he is sure that Kagan participated in discussions about the law and challenges to it while she served in the Justice Department as Obama’s top Supreme Court lawyer. Hatch told Fox News that he believes Kagan “should recuse herself,” although he noted the justice alone will make that determination.

The Utah senator also voted against Kagan’s confirmation to the Supreme Court in August.

The issue of Kagan’s participation looms if the justices’ views on the health care law divide along ideological lines. Her absence in such a situation could leave the court split 4-4, which would prevent it from settling the subject with a uniform set of rules for the entire country.

Kagan addressed her participation during her confirmation hearing.

She said then that she “attended at least one meeting where the existence of the litigation was briefly mentioned, but none where any substantive discussion of the litigation occurred.” Kagan left the administration in August, about five months after the health care overhaul became law.

A federal law sets conditions for when judges who formerly worked for the government should bow out of cases.

Stephen Gillers, an ethics expert and law professor at New York University, said he thinks Kagan can take part in the case if her involvement was limited and did not include offering advice about how to defend the law.

“She should not be sitting in the matter if she is essentially reviewing her own advice as a government lawyer,” Gillers said.