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What to Expect From Elena Kagan?

On Monday, the Senate Judiciary Committee began hearings on President Obama's nomination of Elena Kagan to the Supreme Court of the United States. It goes without saying that this one of the more important things that the president and the Senate do.

Presidents come and go.

Senators are defeated and retire.

Supreme Court justices serve for life.

What to expect? We can expect that the Democrats will praise her as brilliant and qualified. The Republicans will try to show that her views of the relationship of the federal government to individuals are out of step with what most folks expect and inconsistent with what the Constitution requires.

The Constitution is the supreme law of the land. Why do I say that? Because the Constitution itself says that it is. It is the basis of American rule of law. Why do I say that? Because everyone who works for any government in the U.S. — local, state and federal — takes an oath to uphold the Constitution. Thus, the people have a right to expect that their representatives and their judges will uphold the Constitution, come what may. Is that a realistic expectation or a fanciful one?

A few months ago, I asked Rep. Jim Clyburn, the number three ranking Democrat in the House, about where in the Constitution the Congress gets the power to regulate health care. His answer was very telling. Take a listen:

(BEGIN AUDIO CLIP)

JUDGE NAPOLITANO: Where in the Constitution is the federal government charged with maintaining people's health?

REP. JAMES E. CLYBURN, D-S.C.: Well, it's not in the Constitution. There's nothing in the Constitution that says that the federal government's got anything to do with most of the stuff we do.

(END AUDIO CLIP)

OK, there's one member of Congress who does not believe he is committed to following the Constitution. Unfortunately, most other members agree with him.

In recent years, Congress has voted to give federal agents the power to write their own search warrants, even though the Constitution says that only judges may do so. Congress has voted to make it a crime to report that you have received a self-written search warrant, even though the Constitution says that Congress shall make no law abridging the freedom of speech. It has voted to put a federal bureaucrat between you and your doctor, even though the Supreme Court has ruled that what you tell your doctor and what she tells you is none of the government's business. And Congress has voted to give billions to its favorite banks and labor unions, even though the Constitution nowhere permits that.

What does this have to do with the Supreme Court? Everything.

You see, it is the court's job to decide if Congress has been faithful to the Constitution; not whether what Congress has done is wise or fair, but is it constitutional? That's why federal and some state judges and certainly justices of the Supreme Court have life tenure, so they don't get caught up in the politics of the moment like the president and the Congress do. Don't like what BP just did in the Gulf? Intimidate $20 billion from them. Wish the economic crisis hadn't occurred? Print some cash and give it away. Is that what the Constitution permits? Of course not. That's why we have life-tenured judges and that's why we have a Supreme Court.

Think about it: When it works as it should, the judiciary is the anti-democratic branch of government. It keeps the other two branches within the Constitution. If this were not so, nothing would prevent the majority from taking the liberty or the property of the minority.

That brings us back to Elena Kagan. Will she vote to protect freedom? Will she vote to let the Congress regulate any activities or tax any events it wants? She will soon have the power — with four other justices — to permit or stop abortions, to stop the president and the military, to tell the president and the Congress and the states how to stay within the confines of the Constitution.

How will she use all that power?

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