Editore"s Note
Tilting at Windmills

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July 1, 2010

KAGAN, VEGETABLES, AND CONTEXT.... As a rule, when you see the words, "Far-right blogs are all worked up about _____," you can probably assume the development that fills in the blank is foolish. Yesterday, the rule held true.

As part of Elena Kagan's Supreme Court confirmation hearings, Sen. Tom Coburn (R-Okla.) wanted to explore the nominee's approach to government regulatory power under the Commerce Clause. He came up with a hypothetical: "If I wanted to sponsor a bill and it said Americans, you have to eat three vegetables and three fruits every day and I got it through Congress and it's now the law of the land, got to do it, does that violate the Commerce Clause?"

Kagan replied that such an effort "sounds like a dumb law." Realizing that Coburn was apparently serious, she added, "But I think that the question of whether it's a dumb law is different from whether the question of whether it's constitutional and I think that courts would be wrong to strike down laws that they think are senseless just because they're senseless."

Coburn added that he wants to know whether the government can tell Americans what to eat. As Kagan pondered how best to answer, the far-right senator insisted that the constitutional framers "never imagined that we would be so stupid to take our liberties away" through the Commerce Clause.

The video of that exchange quickly became a right-wing favorite -- pushed aggressively by Drudge, Hannity, and Senate Republicans -- because it was apparently "proof" that Kagan supports some kind of expansive "nanny state."

What the excited conservatives didn't realize is that the discussion continued beyond the 78 seconds shown in the circulated YouTube clip.

In comments she made after the brief clip the GOP posted, Kagan indicated that laws that regulated non-economic activity, which presumably would include eating, were beyond Congress's Commerce Clause power.

Coburn later modified his hypothetical to assert that there would be an economic impact. "What if I said that if eating three fruits and three vegetables would cut health care costs 20%? Now, we're into commerce. And since the government pays 65% of all the health care costs why isn't that constitutional?" he asked

"I feel as though the principles that I've given you are the principles that the court should apply," Kagan said at that point.

So, while Republicans and allied activists threw a fit over Kagan dodging the question, the nominee actually answered it, and did not take a wildly expansive view of the Commerce Clause. Coburn was playing a little game, but his GOP friends got all worked up over nothing.

As Kevin Drum concluded, "We are truly ruled by idiots. At least, we will be if Republicans win control of Congress in November. Be afraid. Be very afraid."

Steve Benen 8:30 AM Permalink | Trackbacks | Comments (21)

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And, and, how would you treat a law that made everyone buy energy drinks?
I think Coburn would count as one of the 3 vegetables.
And, being as homophobic as he is, I think he may well qualify as a fruit, too. Or at least half of one.
Have the Chinese started manufacturing Republican Senators? I mean, there no quality control anymore. It seems that they roll-off the assembly line, poisonous and defective (mentally). Sheeeeesh!

Posted by: c u n d gulag on July 1, 2010 at 8:42 AM | PERMALINK

that's a dumb law?
it's also a dumb question from a guy who - alas - isn't even the dumbest senator from his state.

Posted by: mellowjohn on July 1, 2010 at 8:50 AM | PERMALINK

In that spirit Az is turning the state commerace dept inro a "economic development" agency. While temauning at the bottom of spending for educarion, our Gov seems to think an ignorant population is an employable population.

Posted by: KurtRex1453 on July 1, 2010 at 8:53 AM | PERMALINK

We would be ruled by idiots, should become the rallying cry of the Democrats for the November midterm elections. There is an endless supply of evidence that is ripe for the picking.

I watched the three days of the hearing for General Kagan and I was embarrassed by the GOBP senators. It is astonishing to think that many of these Republican senators are former lawyers, prosecutors, and judges. It is scary to think that they are elected officials but scarier still to think that they had anything to do with the law.

Posted by: Ladyhawke on July 1, 2010 at 8:57 AM | PERMALINK

I assume what Coburn was doing was asking how Kagan would rule on individual mandates for health care. If he did so directly, the formulaic answer would be can't answer as Court may hear case. By asking about Congessional mandate to eat vegetables, he was trying to pin her down. As evidenced by his follow up - if commerce clause justification was that eating vegetables cut health costs
what better way could he ask the question?

Posted by: Johnny Canuck on July 1, 2010 at 9:00 AM | PERMALINK

"his GOP friends got all worked up over nothing."

Well, no. How many TeeVee/Reichwing radio people watch C-Span? How many SAW the whole clip?

None, and none. So; how many of these people (A) believe what they saw was the whole truth, and (B) how many of them vote?

-that was a rhetorical question. . .

Posted by: DAY on July 1, 2010 at 9:07 AM | PERMALINK

And what about a law that regulated what you can do in the privacy of your own bedroom? Would that fall under the commerce clause? Should the government be able to pass laws about that?

Posted by: royalblue_tom on July 1, 2010 at 9:10 AM | PERMALINK

"What if I said that if eating three fruits and three vegetables would cut health care costs 20%? Now, we're into commerce. And since the government pays 65% of all the health care costs why isn't that constitutional?"

The key word in that question is "IF" you eat 3 vegetables and fruits it would cut health care costs 20%. That is not a mandate. There are no "IFs" in a mandate. She could have turned that around and told him it may be constitutional if it would lower health care cost.

Posted by: mmw on July 1, 2010 at 9:10 AM | PERMALINK

I would like to correct the following...

As Kevin Drum concluded, "We are truly ruled by idiots. At least, we will be if Republicans win control of Congress in November. Be afraid. Be very afraid."

It should read: ...if Democrats win control of Congress in November. Be afraid. Be very afraid. If Republicans win control of Congress in November. Be scared out of your mind. Start looking for a civilized country to move to.

Posted by: SadOldVet on July 1, 2010 at 9:11 AM | PERMALINK


The SCOTUS has struck down laws regulating what you can do in the privacy of your bedroom. Lawrence v Texas, 2003.

Posted by: cr on July 1, 2010 at 9:19 AM | PERMALINK

As SadOldVet laments, it is becoming increasingly clear that control of the WH, a solid majority in the House, and what would normally be a majority of the Senate for Dems is not what I thought it would be.

Perhaps I am naive. But one would think that the mandate handed them would energize Dems to fight and not retrench, cower, or otherwise avoid confrontation. Instead, they appease. Republicans, they fight. We don't. Certainly some efforts have seen refreshing attacks from Dems, but generally I'm not seeing the fight for progressive ideals that I thought I would see. Organized, consistent messaging attacking Republicans for their intransigence in disallowing votes, and spotlighting their requirements that all bills be watered down to virtually nothing of substance, are what I had expected to see and hear.

Sure, established media are owned by Right-leaning interests, but Dems are on TV, radio, and in print every day, and they could make a lot of noise if they wanted to. But they do not. And they do not routinely or at least effectively use the bully pulpit via press conferences and other venues that their power affords them. Why is that? Dems often decry 'lack of political will' or 'polls that don't show support' for one issue or another. Well sure, if you don't fight for something, if you don't air it out each and every day and shout it from the rooftops, you're not going to get the political will or the public support. Because the public doesn't hear you making noise about it. That could change if you show some fight and resolve. People like fighters, not cowards.

Posted by: terraformer on July 1, 2010 at 9:23 AM | PERMALINK

mmw, I agree. 20% reduction in costs is quite a reasonable, and supportable, goal. Even as grown up children, the thugs don't want to eat their vegetables.

BTW, even under Obama's Wundercare, that 20% reduction would never actually happen. Without a direct adversary, the system has no incentive to curtail costs and, for our benefit, can always find an excuse for charging more.

Posted by: Michael7843853 on July 1, 2010 at 9:27 AM | PERMALINK

But you would agree that's a far better line of complain against Kagan than then fact she worked for Thurgood Marshall or was born on the Upper West Side? It was probably the best question of the whole hearings and the fact you're bent out of shape about it only proves it.

Much of the what the government does is unconstitutional but the expansive reading of the Commerce Clause allows it to take place and the courts have upheld it time and time again. Even conservative ones like the Roberts court

Posted by: Sean Scallon on July 1, 2010 at 9:50 AM | PERMALINK

terraformer, I don't watch much TV these days but have seen Democrats on the Sunday press panels a few times. Sometimes, they do sit there and make weak arguments about the merits of the bill without attacking the outrageous nature of the BPublican talking points.

Sometimes, however, they do speak forcefully about BPublican obstructionism, and call out the latest talking points for the blatant lies they are. The result is almost always for the host to give the BPublican guest a chance to respond, then immediately move on to another topic before the Democrat can follow up or elaborate.

Similarly, when the President gives a speach or press conference, the speach itself gets covered, but his attempts to change the terms of the debate, to focus on BPublican obstructionism or on the ultimately unserious nature of arguments over "death panels", or a "socialist takeover of the economy" almost never get any traction in the media follow-up.

Posted by: tanstaafl on July 1, 2010 at 9:56 AM | PERMALINK

Didn't Thomas's dissent in Lawrence regarding the constitution not forbidding "uncommonly silly" laws get widespread conservative applause? Even though that particular law involved (heightened?) rational basis?

Here there's no 14th Amendment issue to the law AFAIK, and so Thomas's dissent should apply in full. So WTF?

Posted by: Justin on July 1, 2010 at 10:20 AM | PERMALINK

So if we need to keep on hammering away on the point that if the reBPublicans do it it is not illegal . Then we can have peace on Earth and goodwill towards RePBublicans ?
And cheezbuhrgers for everyone , (who qualifies , see old white angreiphiles)
Oh rapture !
It is so plain to see now , sigh .
Comparing vegetables to the commerce clause and Obama to every sort of nightmare sociopath in recent memory .
Meanwhile , in another unused portion of reason and logic another profitable enterprise is unfolding ...
It is still Clinton who has set into motion the destruction of all that is pure , clean , and holy . If only GHW boooschie wasn't such a pragmatic and decent sort he could have saved us . Then the five term presidency of the satanic sex maniacal anti something something of bumpity bump Clinton would never have happened , double plus sigh . Those nice ponies whose vigour and stamina is expressed in their soft pink coats would have homes in better neighborhoods , for sure .
Oh the obstructionism of all those who would remind us of how we failed to support every dream of Eric Prince . The poor son of indecent wealth who was so rudely called on to explain why his minions needed , in desperate mayhem , to continually indiscriminately slaughter brown skins . This was wonderfully addressed by the stalwart savant of mindless murder by his pouting refusal to play at the game were he made another indecent haul of taxpayer money killing woman and children .
The librul media doesn't cover the anguish of hauling around taxpayers money these poor , pitiful saints of colonizing defenseless peoples future .
The hernia , the hernias ...

Posted by: FRP on July 1, 2010 at 10:34 AM | PERMALINK

@ c u n d gulag ..speaking of power drinks... I think everyone should be forced to drink Brawndo. Idiocracy: The Documentary

Posted by: john R on July 1, 2010 at 10:41 AM | PERMALINK

Congress has the power to do all sorts of stupid stuff. A vegetable-eating mandate would be a lot more sensible than invading a country that hadn't attacked us and had no WMD, and Coburn expected us all to support that Congressional folly.

Posted by: biggerbox on July 1, 2010 at 10:42 AM | PERMALINK

I was happy to hear Republican callers to CSPAN during one break yesterday; aside from the tea party wing*, they were favorably impressed with Kagan, hoping she would be confirmed, and disgusted with Republican senators' questions.

*identified as such when they began spewing Beck/Limbaugh/Palin talking points

That said, I was also disgusted with Sen. Specter, who badgered Kagan (IIRC) to answer his questions about her personal views on issues that she has worked on as Solicitor General, when he knows darned well that she can't answer. Finally, Specter admitted that he was doing this because John Roberts had snookered him during his hearing and reversed himself, resulting in the Citizens United ruling. If memory serves, Specter was Chair of the Judiciary Cmtee at that point, so I can only assume his ego took a hit. Anyhow, I was doing some other stuff while listening to this, so feel free to correct me if I misunderstood the senator. I've not been a fan of Specter's since his badgering of Anita Hill; even though it was his job to get Clarence Thomas confirmed, it was uncalled for.

Posted by: Hannah on July 1, 2010 at 11:04 AM | PERMALINK

If you don't mind a segue into the "Far-right blogs are all worked up about _____," other than Kagan: they're worked up about USAG Holder dropping a case against the New Black Panther group accused of voter intimidation in Philly. Holder's office 'said it obtained an injunction against one member to keep him away from polling stations while dismissing charges against the others "based on a careful assessment of the facts and the law."' as reported around, but that doesn't satisfy the critics. The claim the charges were dropped (well, they weren't entirely dropped anyway) comes from "J. Christian Adams, now an attorney in Virginia and a conservative blogger."

Posted by: neil b on July 1, 2010 at 11:24 AM | PERMALINK

"And what about a law that regulated what you can do in the privacy of your own bedroom?"

The law that says it's a Federal crime for me to smoke a joint in the privacy of my bedroom remainds in force.

So much for privacy.

Posted by: rachelrachel on July 1, 2010 at 1:44 PM | PERMALINK
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