With very few exceptions, day two of the Kagan hearings were a ten-hour exercise in talking without saying anything. One of those exceptions came late in the proceedings via the estimable Sen. Tom Coburn (R., Okla.) who asked a series of proxy questions about Obamacare and the individual mandate.
In the video below, Coburn’s hypothetical is basic enough. If Congress passed a law mandating that Americans eat their vegetables, is that covered under the Commerce Clause? Kagan’s answer, or lack thereof, is telling:
Such a law would not merely be “dumb,” as Kagan says. It would be dumb and totalitarian, and its dumbness would not mitigate its totalitarianism. As someone who has watched nigh every minute of the hearings, remaining mum on whether Congress has the power to tell Americans what to eat every day marks the first time Kagan has slipped and revealed something of her judicial substance will give all conservatives — and most average Americans — great cause for concern.
The shame is that Coburn, after asking this great question, lets her off the hook. This issue must be revisited, and with gusto.