The Kagan Hearings: Fruits, Vegetables, and a Waste of Our Time

Senator Tom Coburn (R-OK) asked an illuminating question to Elena Kagan during yesterday's confirmation hearings:

The gist of the question was: Could Congress pass a law saying Americans had to eat three vegetables and three fruits every day? Would that be valid under the Commerce Clause?

In an answer displaying the true absurdity of what the confirmation hearings have devolved to, Kagan danced around the question. While admitting that it "sounds like a dumb law," she did not deny that the Commerce Clause gave Congress the right to pass such a law. In what has become cliché for judicial nominees, she gave the "it's not our job in the courts to strike down dumb laws" answer. OK, I understand that she can't say whether or not that specific law would be unconstitutional; for all we know such a law could be passed and Kagan would have to rule on its constitutionality if she were confirmed to the Supreme Court. However, isn't she sitting there to discuss her judicial philosophy? Can't she at least let us know her general thoughts on an extremely important part of the U.S. Constitution?

The most troubling part of her answer is that she refused to elaborate on any limitations to what laws Congress could pass under the Commerce Clause. Earlier, Senator Cornyn (R-TX) brought up the Commerce Clause in the context of the individual mandate to purchase health insurance. There, Kagan did say there are "some limits" to a law passed under the Commerce Clause, mainly one that was "not itself economic in nature," but again did not go any further. You probably don't have to be a constitutional scholar to guess that, at least theoretically, some non-economic activity would be safe from regulation under the "Commerce" Clause.

Are we really supposed to believe that she doesn't have anything else to say on this? Any law student who has taken Constitutional Law has at least given a passing thought to whether the legislation in question in cases like Lopez or Morrison was constitutional. In an era of increasing government regulation and control over both the economy and in our personal lives, Kagan's non-answer is not good enough. Especially when it relates to a part of the Constitution that Congress uses as a catch-all when passing legislation.

Much has been said about Kagan's 1995 writing where she lamented the lack of disclosure by judicial nominees, calling the confirmation hearings a "vapid and hollow charade." Kagan was even reminded about it a few times during yesterday's hearings. I suppose it is hard to blame her. She knows she can dodge these questions, charm the Senators with her admitted good sense of humor, play it safe, and likely be confirmed, perhaps with even a few Republican votes. I don't think anyone really expected her to be more forthcoming than past nominees. It makes it no less frustrating though.

Coburn's question was smart because it illustrated how little of substance is covered in these hearings. No matter how ridiculous the hypothetical, the nominee will not give a definitive opinion on its legality. Will anyone really walk away from these hearings knowing much more about Kagan's view of the Constitution than when we started? Sadly, the answer is no.