In May, JCN warned that “a stealth nominee is the only way President Obama can minimize the political damage he and his party could suffer from a full-throated discussion of his judicial philosophy: one that would substitute empathy for impartial legal reasoning and rubber stamp his big government political agenda that the American public has overwhelmingly rejected.” That seemed like a safe assessment, especially in light of a New York Times story that quoted an Obama aide as stating that “Mr. Obama has come to worry that a conservative Supreme Court could become an obstacle down the road.”
So we were not shocked yesterday when Kagan signaled that she would vote to uphold Obamacare. In fact, Kagan made it sound as though she believes the national government has essentially unlimited powers, even refusing to concede that it would be unconstitutional for the national government to force Americans to eat fruits and vegetables. As Kagan told Senator Coburn, “the commerce clause has been interpreted broadly” and such legislative enactments are entitled to “substantial deference.” These views are consistent with her work in the Clinton administration, illuminated by this Wall Street Journal editorial on her statements regarding a few of the Supreme Court’s landmark decisions on federalism and the national government’s commerce power.
Obamacare is currently being challenged in federal court by nearly two dozen states, and court watchers expect it to reach the Supreme Court at some point in the near future. It will be interesting to see if any Senators press Kagan further on how involved she was in the drafting and enactment of Obamacare, or whether the support she expressed for that law during the hearings will compel her to recuse herself when that challenge does reach the Supreme Court.