Republicans To Oppose Kagan Because She’s Not Enough Of A Judicial Activist

Republicans have responded to Elena Kagan’s nomination to the Supreme Court with a mix of caution and concern. While pledging to conduct a fair and honest hearing, the party has said that the nominee will need to “demonstrate that she is committed to upholding the vision of our Founding Fathers, who wrote a Constitution meant to limit the power of government, not expand it.” To ensure that Kagan is “dedicated to applying the law equally and impartially to all, not promoting a particular ideological agenda or legislating from the bench,” the GOP has promised to “thoughtfully examine Kagan’s qualifications and legal philosophy before she is confirmed to a lifetime appointment.” Kagan’s views on health care reform and federal mandates are of particular interest to the GOP:

- SEN. JOHN BARRASSO (R-WY): “The other issue is the health care bill that’s come out — there’s a mandate everybody in the country has to buy a product. That’s a 10th amendment issue… she is going to have to make a decision if she’s on the court about how that goes forward with these 20 states suing.” [TP, 5/10/2010]

- REP. JOHN BOEHNER (R-OH): “On this, and other issues – including the Constitutional questions arising from Washington Democrats’ new health care law – Solicitor General Kagan deserves a fair hearing on her qualifications, and her commitment to fairness, the rule of law, and interpreting the Constitution as written.” [GOPLeader, 5/10/2010]

- GOP.COM: A research document published by the GOP asks, “Where Does Kagan Stand As Health Care Overhaul Faces Variety Of Legal Challenges?” [GOP, 5/10/2010]

But the GOP can’t ask Kagan to be both a constitutional originalist and an opponent of the new health care law. In fact, given the long-standing Supreme Court precedent surrounding the federal government’s ability to regulate interstate commerce, should Kagan agree with Republicans’ claims that the lawsuits violate the 10th amendment, she would be seen as a judicial activist.

The Supreme Court affirmed this precedent as recently as 2005. In Gonzales v. Raich, Justice Anthony Scalia “joined a 6-3 ruling that said Congress could regulate marijuana that was neither bought nor sold on the market but rather grown at home legally for sick patients.” “The regulation of an intrastate activity may be essential to a comprehensive regulation of interstate commerce even though the intrastate activity does not itself ‘substantially affect interstate commerce,” Scalia wrote. “Moreover, as the passage from Lopez quoted above suggests, Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce.”

Therefore, if Kagan were to support the frivolous health care lawsuits, she wouldn’t just be breaking years of Supreme Court precedent. She would also be committing the conservative’s cardinal sin of disagreeing with Scalia.