Posted by: Debby Durkee | May 19, 2010

Challenging Kagan on the Constitution.

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Challenging Kagan on the Constitution.

Tony Blankley writes a brilliant piece which is featured at http://www.realclearpolitics.com/. He says that the rules in the Senate that have governed the fairly automatic approval of liberal Supreme Court Justice nominees should change since liberal presidents have sought to undermine the Constitution instead of uphold it. He uses Elena Kagan’s nomination as a case in point.

Those rules might be summarized as follows: (1) The president is entitled to an appointee who generally shares his views (i.e., a liberal president is entitled to a liberal justice; a conservative president is entitled to a conservative justice). (2) A nominee should be confirmed if he or she is professionally qualified and of generally good character. (3) The only exception to Rule Two is if the nominee’s views are provably and dangerously outside the mainstream of respectable thought.  Snip –

…The current rules are obsolete, having come into being at a time when the federal courts had not yet been consciously politicized. Today, liberal presidents attempt to use their appointments with the intent to systematically undermine — not uphold — the Constitution. And they do so because their vision of an ever-more-statist America is inconsistent with the Constitution’s fundamental purpose: to limit the size and scope of government.  Snip –

…liberal justices tend to seek to undermine the clear intent of the Constitution while conservative justices try to hold the line: The result is an inexorable march toward undermining the Constitution, with conservative appointments functioning as mere temporary holding actions.

…I respect Republican senators who wish to venerate well-established traditions. But now, in the fateful spring of 2010, those senators need to consider which of conflicting traditions they intend to venerate. They can either venerate the traditional rules of confirmation or they can venerate the United States Constitution — but not both.

I introduce, as Exhibit A on behalf of this choice, the provision in Obamacare that requires every American citizen to buy a health insurance policy. When the case challenging the constitutionality of that provision reaches the Supreme Court (as about 20 state attorneys general are currently attempting to accomplish by litigation), the government will argue that it is permitted under the power of the federal government to regulate interstate commerce.

They will be forced to argue that the mere inaction of an individual American citizen is an act of interstate commerce worthy of regulation. If that proposition is upheld by the Supreme Court — then we no longer have a limited government. The government would then have the power to outlaw and punish (by fine or prison term) any American’s decision not to exercise, not to vote, not to eat four servings of vegetables a day — any human inaction would be sanctionable under the Interstate Commerce Clause — and then adios liberty.

Blankley goes on to make the point that the president has known Kagan since law school so we can guess which way she will rule on Obamacare. Blankley basically leaves Republicans with a stark choice to vote for the Constitution or to vote to keep the Senate rules. Do you think Republicans who are in the Senate right now will buck the system they’re so used to? Good question. Please read all of Blankley’s interesting argument here: http://www.realclearpolitics.com/articles/2010/05/19/challenging_kagan_on_the_constitution.html

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