U.S. Sen Tom Coburn presses Kagan on the reach of congressional power

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U.S. Sen Tom Coburn presses Kagan on the reach of congressional power

Republican Senator Tom Coburn's questions of Supreme Court nominee Elena Kagan appear to reference new health care law.

BY CHRIS CASTEEL Oklahoman Comment on this article 5
Published: June 30, 2010

WASHINGTON — Sen. Tom Coburn questioned Supreme Court nominee Elena Kagan on Tuesday about the reach of congressional power and whether she would be able to doff her "political hat” on the high court.



Senate Judiciary Committee member Sen. Tom Coburn, R-Okla., question Supreme Court nominee Elena Kagan during her confirmation hearing before the committee, Tuesday, June 29, 2010, on Capitol Hill in Washington. (AP Photo/Susan Walsh)


Questioning Kagan during the second day of her confirmation hearings before the Senate Judiciary Committee, Coburn started by suggesting Kagan hadn't been forthright with other senators about her liberal views.

"I don't apologize for my social conservatism or my fiscal conservatism,” Coburn, R-Muskogee, said. "I think you're a liberal; I think you're proud to defend that. You have a different belief system than most of the people where I come from.”

Kagan said her political views wouldn't shape her opinions as a jurist. Coburn asked how she could take off her political hat to be an impartial judge.

"That hat has not been on for many years,” said Kagan, who has been serving since last year as solicitor general, who is the chief advocate for the president before the U.S. Supreme Court.

Kagan said that she had spent four years of her 25-year legal career in the White House working for former President Bill Clinton. The majority of her career, she said, has been spent working as a legal scholar and teacher.

Fruit, veggie law
Coburn spent a portion of his time making an apparent veiled reference to the new health care reform law and asking Kagan why Congress was allowed to legislate so broadly under the Constitution's commerce clause. He gave her a hypothetical question about Congress passing a law that would require all Americans to eat three fruits and three vegetables a day.

"Sounds like a dumb law,” Kagan said.

Coburn responded that it wasn't as dumb as one that he would refrain from mentioning.

With the acquiescence of courts, Coburn said, Congress had expanded the use of the commerce clause in ways the nation's founders had never envisioned.

Coburn's questions related directly to congressional objections, and now legal challenges, to the new health care law, particularly its requirement that most people buy health insurance.

"What if I said eating fruits and vegetables would cut health care costs by 20 percent?” Coburn said. "Then we're into interstate commerce.”

Kagan said the Supreme Court has long given deference to Congress in regard to the scope of the commerce clause.

She said it has been broadly interpreted to include anything that would substantially affect interstate commerce but that Congress can't use it to regulate non-economic activities.

Coburn also asked Kagan about whether she would consider foreign law in making decisions. She said she didn't think foreign law was appropriate to refer to "in the vast majority of legal cases.”

Coburn pressed Kagan about when justices should consider court precedents and when they should consider the original intent of the framers of the Constitution.

Kagan said it required a pragmatic, case-by-case approach.

"But that's a judgmental decision,” Coburn said.

"I don't disagree with you that judging requires judgment,” Kagan said.