1. Kagan’s repeated refrain that “It’s law all the way down” is a nice-sounding proposition, but there’s nothing in the judicial philosophy that Kagan has so far expressed that supports her assertion that her approach would be constrained. In other words, if what Kagan considers “law” (i.e., legitimate legal resources) includes, say, the sort of vacuous philosophizing encapsulated in the proposition (see This Day for June 29, 1992) that “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life,” then there’s no limit to the results that she could reach.

Kagan describes herself as a pragmatist. Again, that sounds nice (as though the alternative is to be unpractical), but what she means by that is that she’d be free to pick and choose in the vast majority of cases among a range of interpretive methodologies. Unless that choice is guided by a higher principle (and Kagan suggests none), Kagan’s approach is so malleable that it would enable her to reach whatever result she wants on the most momentous constitutional questions.

It’s not a meaningful answer to this criticism to assert (as now seems to be the fashion) that judging involves judgment. If that judgment is ad hoc, rather than guided by principle, it’s merely a disguise for judicial willfulness.

2. Kagan has made crystal-clear that she sees virtually no meaningful limits to Congress’s Commerce Clause authority. She’s also made clear that she believes that she won’t have to recuse herself from challenges to Obamacare. So it’s clear that she’ll be a vote in support of the individual mandate.

3. I particularly like Hadley Arkes’s post yesterday outlining how Republican senators ought to be trying to draw Kagan out. As Kagan stated in her 1995 article, general answers on judicial philosophy “can—and have—become platitudinous” and “may be so abstract as to leave uncertain, especially to the public, much about their real-world consequences.”

4. There’s a lot of ground still to cover. I especially hope that Republican senators explore Kagan’s actions as Solicitor General that operated to undermine two of the federal laws that she was dutybound to defend: the Don’t Ask, Don’t Tell law and the Defense of Marriage Act. Pursuant to Shannen Coffin’s explosive essay yesterday, they also need to probe her role in manipulating ACOG’s policy statement on partial-birth abortion.