Today in Washington - August 3, 2004

Anti gun activist Elena Kagan’s nomination to the U.S. Supreme Court hits the Senate floor today.  Ironically, this is the same day that the Washington Post reports that a federal judge in Virginia refused to dismiss a challenge to ObamaCare’s mandates.  This case is going to the U.S. Supreme Court, yet many Senators are not willing to put up a real fight before this left wing extremist is provided a lifetime appointment to the High Court.  From the WP:


A federal judge refused Monday to dismiss a Virginia lawsuit challenging the nation’s sweeping new health-care law, indicating the law represents a novel extension of Congress’s constitutional authority that should be tested in court and handing the law’s foes an early legal victory.  U.S. District Judge Henry E. Hudson rejected arguments from Obama administration lawyers that Virginia has no standing to sue over the law and would have no chance of ultimately prevailing.

The Senate will work full time on the Kagan nomination.  Senator Patrick Leahy (D-VT) and Senator Jeff Sessions (R-AL) will lead off the proceedings.  Expect this debate to go all day and late into this week.  The Senate Banking, Housing and Urban Affairs will consider a bill called the “Livable Communities Act,” S. 1619, that, among other things, establishes an “Office of Sustainable Housing and Communities.”  Just what we need — another government bureaucracy.

Elena Kagan’s nomination will dominate the news coverage over the next few days.  It is important to note two important points:

  1. Kagan will vote on the Supreme Court to gut the 2nd Amendment.
  2. Kagan will vote to support the individual mandate contained in ObamaCare.

Even Kagan’s lefty allies at Media Matters and other far left organizations will have a hard time arguing to the contrary.


Kagan has been a life long activist against the Second Amendment to the Constitution.  She wrote as a clerk to Justice Thurgood Marshall that she was “not sypathetic” to a petitioner’s claim of a 2nd Amendment violation.  Kagan helped draft President Clinton’s policies on gun control.  Kagan claimed at the Senate Judiciary Hearing on her nomination that she never had time to review the history of the 2nd Amendment “which I’ve never had an occasion to look at.”  This is code for the idea that she would join Justice Sonia Sotomayor in holding that the Heller case, a case that held the 2nd Amendment to be an individual right, was wrongly decided.  If Kagan is confirmed, the Supreme Court will be one vote away from taking away your 2nd Amendment individual right to keep and bear arms.

On the issue of Obama’s individual mandate, Kagan has evidenced a hostility to the idea that there are any limits on the Commerce Clause power of the federal government.  Senator Tom Coburn (R-OK) asked Kagan the extent of the reach of the Commerce Clause contained in the Constitution.

As I wrote for Red State on June 30th:

Conservatives are deeply concerned about the nomination of Elena Kagan to the U.S. Supreme Court because of her extreme views on the scope of federal power.  The Constitution authorizes a limited federal government with enumerated powers.  Article 1, Section 8, Clause 3 states “The Congress shall have power .. to regulate Commerce .. among the several States.”  The exchange between Senator Tom Coburn and Elena Kagan would lead one to believe that Kagan would vote on the Supreme Court to allow a federal mandate forcing all Americans to buy health insurance from a private company.  Elena Kagan said in response to Senator Coburn that “the commerce clause has been interpreted broadly.”  True, yet the Courts have been interpreting the Constitution.  The Constitution’s clear language, not a judges interpretation of that clear language, should be the ultimate binding precedent.  For some reason, liberal nominees use precedent as a crutch to ignore the Constitution and argue that a Supreme Court judges decision in a prior case is binding on current Justices.  Even if that prior interpretation is an incorrect reading of the clear language of the Constitution.  Kagan further stated her interpretation of Supreme Court precedent interpreting the Commerce Clause that “it has not been applied to non-economic activities, especially to the extent that those activities have traditionally been regulated by the states.”  Kagan made a good, but non responsive point that “we can come up with sort of, you know, just ridiculous sounding laws, and the — and the — and the principal protector against bad laws in the political branches themselves.”  True.  If a bad law is passed, the politicians will be sent packing for new politicians to reverse a bad law.  That may happen with ObamaCare, yet it ignores the core question of whether the Commerce Clause grants the federal government virtually unlimited powers to force private citizens to eat vegetables, fruit and purchase private health insurance.


These are merely two of many issues that will be debated with regard to Kagan’s suitability for a lifetime appointment to the Supreme Court.  This is an important debate for conservatives to watch this week.


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