2010 - %3, July

Elena Kagan's Tea Party Vetting

| Thu Jul. 1, 2010 3:50 AM EDT

Supreme Court nominee Elena Kagan may become the first modern justice whose vetting was designed to placate people in tricornered hats. Her three-day, nationally televised comfirmation hearings gave Republican members of the Senate Judiciary Committee lots of air time to pander to their constituents back home. And it was clear from the get-go that their talking points weren't intended to elicit Kagan's legal philosophy (they knew she was a liberal, after all) but rather to convince the unruly tea party movement that incumbent GOP senators are the standard-bearers of constitutional conservatism.

No one actually mentioned the tea partiers during the hearings, but they were there with their pitchforks in spirit. In past Supreme Court confirmation hearings, Republicans have traditionally focused on the usual hot-button social issues—abortion, gay rights, maybe even porn for good measure. And Kagan’s hearings certainly had all of those (crush videos instead of porn, though). But many of the main Republican themes about government overreach came straight from the tea party playbook—and for good reason.

Tea partiers revere the Constitution, which is at the heart of the Supreme Court’s work. They study it like evangelicals study the Bible. While much of their understanding of the document seems derived from Glenn Beck and 5,000 Year Leap author Cleon Skousen, many tea partiers are remarkably well versed in a wide range of constitutional law debates on everything from 2nd Amendment gun rights to whether the 10th Amendment check on federal power renders health care reform unconstitutional. And while public interest in the Kagan hearings seemed pretty low, if anyone was paying attention, it was tea party activists.

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Elena Kagan and the Vegetables

| Thu Jul. 1, 2010 12:40 AM EDT

Supreme Court confirmation hearings are little more than figurative jokes these days, but the LA Times tells me that today's questioning of Elena Kagan was literally a joke:

Perhaps no amount of cramming could have readied her for the question asked of her by Republican Sen. Tom Coburn of Oklahoma: Can the government, he wondered, pass a law forcing Americans to eat fruits and vegetables?

To Kagan, at first blush, the question must have seemed absurd, maybe even a joke. "It sounds like a dumb law," she replied off the cuff. Then, realizing Coburn was serious, she segued into sort of the windy, contextual, cautious analysis that she has employed to answer most of the questions asked of her over the last two days.

But she had fallen into Coburn's trap by answering more like the law professor she is than by simply responding like most people would. She never just said: "Of course it can't."

Within hours, a video detailing the exchange was atop the Drudge Report website, hundreds of thousands had viewed it on YouTube, and conservatives were having a field day. Her equivocation fit ideally with the narrative Republicans are trying to fashion during these hearings — a story of a federal government out of control and a Congress running amok.

We are truly ruled by idiots. At least, we will be if Republicans win control of Congress in November. Be afraid. Be very afraid.