GOP Wants Kagan To Be Both For And Against Precedent

Since President Obama nominated Elena Kagan to the Supreme Court, conservatives have promised to “rigorously question Kagan” about where she stands on the “variety of legal challenges [facing] health care overhaul.” Sen. Jeff Sessions (R-Ala.), the judiciary committee’s ranking Republican, said in his opening statement, “The president and Congress have taken over large sectors of our nation’s health care system.” He called on the courts to rectify this problem,”Americans want a judge that will be a check on government overreach, not a rubber stamp.”

In the clip below, Sens. Jon Cornyn (R-TX) and Tom Cobrun (R-OK) challenge Kagan on the commerce clause. Cornyn and Coburn complain to Kagan that they disagree with the Court’s broad interpretation of the commerce clause and Kagan reminds both Senators that this long standing precedent is, in fact, the state of current law:

CORNYN: But again, the Tenth Amendment, which I think most people sort of popularly view as an expression of our federalist system, and the fact that the states and individuals retain power that’s not been delegated to the federal government, has largely, in my opinion, been rendered a dead letter by Supreme Court decisions…..if Congress can force people to — who are sitting on their couch at home — to purchase a product and penalize them if they don’t purchase the government-approved product, it seems to me there is no limit to the federal government’s authority and we’ve come a long, long way from what our founders intended.

KAGAN: Well, I think the current state of the law is to grant broad deference to Congress in this area, to assume that Congress knows what’s necessary in terms of the regulation of the country’s economy, but to have some limits. And the limits are the ones that were set forth in the cases that you mentioned, the Lopez case and the Morrison case, which are where the activity that’s being regulated is not itself economic in nature, and is activity that’s traditionally been regulated by the states.

But while Cornyn disagrees with the Court’s commerce clause precedent, he agrees with its decisions on gun rights and campaign finance. Moments after dismissing the Supreme Court’s rulings on interstate commerce, he praised the nominee for recognizing “that cases like Heller, McDonald, Citizens United are — are the law of the land and entitled to — entitled to deference by succeeding courts, even if you may disagree with the outcome.”

Watch a compliation:

As Kagan reminds him, as a Justice, she won’t have the privilege of choosing which precedent she agrees with. “The entire idea of precedent is that you can think a decision is wrong. You can have decided it differently if you had been on the court when that decision was made. And — and nonetheless you are bound by that decision. That’s — if the doctrine of precedent enabled you to overturn every decision that you thought was wrong, it wouldn’t be much of a doctrine.”

Indeed, the consequences of overturning the Court’s interpretation of what Congress can regulate under interstate commerce are fairly extreme. As Sy Lazarus argues in yesterday’s Politico, “if accepted by the Supreme Court, these theories could shatter the constitutional foundations of landmark programs like Social Security, Medicare, civil rights and environmental protections.”