In questioning by Senators Hatch, Kyl, Feingold, and Grassley, Elena Kagan revealed that she has a firm grasp on legal precedent, including what exactly the Court said in Citizens United (as distinct from what President Obama said about the case in his State of the Union address). However, other than an explicit rejection of Obama’s empathy standard—she endorsed “law all the way down” rather than “heart” or “empathy” for “that last five percent”—we still don’t know what she actually thinks about any of these cases. She wouldn’t even go so far as to criticize Citizens United—a case she herself argued from a position she admitted she thought was right at the time. So everything the Court has ever decided is right? That can’t possibly be right; no lawyer or scholar in the country could possibly agree with every single thing the Court has done in the last year, let alone in the history of the Republic. Well, Solicitor General Kagan, tell us, then, which cases were decided incorrectly—whether or not they should be overruled given other considerations.
To give an example, how about Heller and McDonald, the two gun cases. Kagan has said that judges must respect a precedent unless it proves unworkable or new facts emerge that would change the circumstances of a case. Is it possible for any new facts to emerge that would allow a future Court to determine that the Second and Fourteenth Amendments do not protect an individual right to keep and bear arms for self-defense? If recognition of the right proves “unworkable,” would the proper remedy come from the Supreme Court or a constitutional amendment repealing the right?
More generally, I’m still waiting on Kagan to indicate that the Constitution limits government power in any way—as opposed to merely being challengeable for allegedly violating individual rights. The Constitution provides for a government of delegated, enumerated, and therefore limited powers, after all, so where do those limits lie. Can the federal government regulate activity that is neither commerce nor crosses state lines? What can Congress force people to do under its power to regulate commerce? Can Congress make any crime a federal crime? Can the government rewrite leases, mortgages and other contracts? What kind of protections does the Fifth Amendment's takings clause give to private property? To be fair, there haven’t been many of these types of questions—and I hope the senators go into these lines of questioning in the remaining time they have—but I firmly believe that a judicial nominee bears the burden of persuading all of us that she understands the Constitution and the governmental structure it creates, not just Supreme Court decisions.
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