ACRU Senior Legal Analyst Ken Klukowski wrote this column appearing on WashingtonExaminer.com on July 5, 2010.
There remain three big issues weighing against Solicitor-General Elena Kagan's confirmation to the Supreme Court. Given these three factors, Democratic senators in red states would do themselves a favor by voting against her.
During her hearings, Kagan showed herself to be friendly, engaging and intelligent. But while some issues seem to be receding to the background, she failed to dispel concerns on three constitutional issues that will doubtless come before the Court many times, on which Kagan is on the wrong side of the American people.
First, the scope of government power. Regarding the limits of federal power to regulate interstate commerce, Kagan refused to say whether a law requiring every American to eat three servings of vegetables a day would be unconstitutional.
That's a shocking answer, given that any conservative (or even moderate) lawyer worth his salt (no pun intended) could quickly explain how such a law is beyond anything ever upheld by the High Court. This means she would vote to uphold the Obamacare individual mandate when it reaches the Court.
Her government-power views extend to free speech. Kagan essentially said she was just following orders when she argued last fall in the Citizens United case that the feds should be able to throw into prison for five years people from any group distributing pamphlets criticizing federal candidates within 60 days of an election.
So on one hand, government has unlimited power to tell you how to live your life. On the other, government can make it a felony for you to criticize its leaders during elections. Together, these make a mockery of the concept of limited government.
Second, national security. Kagan never explained away why she said it was "unfortunate" that a particular law would block foreign terrorists held by our military in places like Afghanistan's Bagram Air Force Base from petitioning a civilian U.S. federal judge from ordering their release. That betrays an invasive view of judicial power to override national-security decisions and micromanage our military's wartime efforts.
And third, Kagan opposes the Second Amendment right to own a gun. As I've previously written, she said she's "not sympathetic" to those who argue that they have a right to a gun in their home for self-defense, she was immersed in Bill Clinton's gun-control efforts, and she declined to file a brief supporting the Second Amendment in this year's historic gun-rights case, McDonald v. Chicago.
As I wrote in my book, The Blueprint: Obama's Plan to Subvert the Constitution and Build an Imperial Presidency, President Obama is feverishly working to advance a gun-control agenda through packing the courts with judges who oppose gun rights. Obama believes Kagan will be a reliable vote in that regard.
Now the National Rifle Association opposes Kagan's confirmation. You have never seen political fury like that which the NRA can unleash. It resembles nothing so much as the electoral equivalent of the Normandy invasion on D-Day. While the NRA is not invincible, fighting it leaves a lot of casualties on the battlefield.
Every single Democrat in the Senate voted for Sonia Sotomayor, with hollow words of confidence that they were satisfied she would vote to uphold the Second Amendment. Those senators must now be made to eat those words on the campaign trail as they fight for their lives, since Sotomayor voted last week in McDonald that there is no constitutional right to own a gun. Voting against the Kagan nomination would provide them an opportunity to take fire out of the anger of gun owners in their home states.
The reality is this: Obama's poll numbers are in the mid-40s. Polls show that support for Kagan's confirmation is also in the mid-40s, with opposition numbers similar to Harriet Miers, and higher than those of successful nominees.
Democrats are poised right now for massive—possibly catastrophic—losses in November, and a long-term policy course that doesn't bode well for 2012. If they value the agenda of the Democratic Party at all, they should try not to become part of the lasting consequences of the political climate by voting for Kagan.
Democratic senators in red states: Don't lash yourself to the mast of the sinking ship called Team Obama. There is no political downside to voting against Kagan's nomination, but there is a serious downside to voting for her. Just be a typical politician. Vote your self-interest. Vote against Kagan for the Supreme Court.