Given Elena Kagan's aversion to "vapid and hollow" confirmation hearings devoid of "legal analysis," beginning Monday she might relish answering these questions:I'm sure she'd find some reason to avoid answering any hypothetical. Her handlers are probably scrambling to come up with some replies right now. But the question on Madison and the limits of federal government are suitably abstract and relevant to make questions that should not be evaded. I hope that the Republicans on the committee have read and highlighted Will's suggested questions.
-- It would be naughty to ask you about litigation heading for the Supreme Court concerning this: Does Congress have the right, under its enumerated power to regulate interstate commerce, to punish the inactivity of not purchasing health insurance? So, instead answer this harmless hypothetical: If Congress decides that interstate commerce is substantially affected by the costs of obesity, may Congress require obese people to purchase participation in programs such as Weight Watchers? If not, why not?
-- The government having decided that Chrysler's survival is an urgent national necessity, could it decide that "Cash for Clunkers" is too indirect a subsidy and instead mandate that people buy Chrysler products?
-- If Congress concludes that ignorance has a substantial impact on interstate commerce, can it constitutionally require students to do three hours of homework nightly? If not, why not?
-- Can you name a human endeavor that Congress cannot regulate on the pretense that the endeavor affects interstate commerce? If courts reflexively defer to that congressional pretense, in what sense do we have limited government?
-- In Federalist 45, James Madison said: "The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite." What did the Father of the Constitution not understand about the Constitution? Are you a Madisonian? Does the doctrine of enumerated powers impose any limits on the federal government? Can you cite some things that, because of that doctrine, the federal government has no constitutional power to do?
When they're done asking about those aspects of federalism, they can turn to his questions on the Arizona immigration law, overturning the Kelo decision on eminent domain and John Kennedy and Hubert Humphrey's denial that federal civil rights legislation should give any race preferential treatment as well as the despicable attempts now underway in Congress to limit corporate speech just because they don't like corporations but have snuck in exemptions for the NRA just to get their political support.
These are just what the Republicans should be doing. Asking short, pointed questions that indicate how empty some of the liberals' judicial positions are. they don't have a hope of keeping her off the bench, but such exposure of the fatuity of the liberal arguments is always healthy.