'Glenn Beck': Will Elena Kagan Be an Activist Justice?

This is a rush transcript from "Glenn Beck," June 28, 2010. This copy may not be in its final form and may be updated.

JUDGE NAPOLITANO, GUEST HOST: 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 to stop abortions, to stop the president and the military, to tell the president and the Congress, and the states, how to stay within the Constitution.

How will she use all that power?

Here's Republican Senator Jeff Sessions who's also the ranking member of the Senate Judiciary Committee.

Senator Sessions, welcome here.


NAPOLITANO: What will you ask Elena Kagan [Tuesday] and what do you expect her to tell you?

SESSIONS: I'm going to talk to her about her philosophy and whether or not we have a commitment that she's part of the mainstream, understanding that our Constitution must be followed whether you like it or not. The American people believe that by overwhelming margin, but many of our justices are quite proud of their activist tendencies and many are praised for taking steps to advance the law which means really to advance the political agenda of the judge.

NAPOLITANO: This morning —

SESSIONS: So, that will be some of the things we'll talk about.

NAPOLITANO: This morning at the judiciary hearings, Senator Sessions, you made a very impassioned and compelling argument about progressivism. I mean, this is the philosophy that basically says you can stretch or twist the Constitution any way you want so the government can regulate activity, tax any event that it thinks it needs to.

Is she progressive? Does she believe that? And can you find this out before you have to vote on her?

SESSIONS: Well, we're going to ask about that. And we'll — we definitely will. I know that E.J. Dionne writing about the hearings today called on the progressive members of the Senate to basically rise up and he made reference to Brandeis, who I think was a known progressive-type jurist. So, that's the — it does look like progressivism is on the rise again and it suggests and implies, even states, that the Constitution is an impediment, it gets is the way of our ability to carry on the agenda we want.

Like the constitutional right to keep and bear arms, oh, goodness, we don't like that. That's an impediment to our vision of what's good for big city, so we'll just rid it out of the Constitution.

NAPOLITANO: All right. When —

SESSIONS: And this is a dangerous philosophy.

NAPOLITANO: When then-Judge Sonia Sotomayor appeared before your committee and you were one of the other Republicans asked her if the Second Amendment guaranteed an individual right to keep and bear arms, she said it does. In today's case on the Second Amendment she said it doesn't, or she can't find where it does, to quote her almost precisely.

Question: Does it matter what they say at your hearings? Once they're confirmed, they do whatever they want anyway?

SESSIONS: Well, I said in my statement that words at the hearing are just not enough. Your actions and your records speak, too — sometimes, they speak more loudly. So, we need to put, you know, dig deeply into that. Senator Coburn was raised that. In his comments, he said, you know, why don't you just tell us the truth what you think?

We — you know, we've got — we've got get beyond this bland statement that I will just follow the law because as you know, Judge, for an activist judge, they can redefine the meaning of the words in the law and claim they are following it.

NAPOLITANO: Right. Now —

SESSIONS: That's the danger we have.

NAPOLITANO: Justice Jackson, for whom a young William Rehnquist clerked, once said they are in fallible because they're final. They're not final because they're infallible. There's no — there's no appeal from them.

But, isn't her confirmation foregone conclusion? And if it, what's the most that those who of us believe in limited government can hope for from these hearings?

SESSIONS: I think we need to expose the idea that as you indicated in your talking points, acceding power to the judiciary to set policy is anti-democratic act. It reduces the power of every American citizen and it's a danger to the heritage we've been given and we need to fight back.

One thing: Elections make a difference. Maybe some of the senators, maybe the next presidential election, will talk about these issues with clarity and votes can make a difference in the long run. But right now, there is a huge Democratic majority who will tend to want to support the president.


SESSIONS: But if this nominee is not clear about her commitment to the law, I think most Americans will not be happy.

NAPOLITANO: Senator Jeff Sessions, Republican from Alabama, the ranking Republican on the Senate Judiciary Committee, we will be watching you all week. Thanks for joining us.

SESSIONS: Thank you.

NAPOLITANO: Jay Sekulow is the chief counsel for the American Center for Law and Justice; Ilya Shapiro is senior fellow in constitutional studies and editor-in-chief of the Cato Supreme Court Review; and Mark Levine, a former congressional attorney and host of radioinsidescoop.com.

Gentlemen, welcome to "The Glenn Beck Program."

Mark, to you first, is there any area of human behavior that Elena Kagan would acknowledge is not subject to congressional regulation?

MARK LEVINE, FORMER CONGRESSIONAL ATTORNEY: Well, sure. Any element of human behavior? That's pretty wide. You have to be more specific.

NAPOLITANO: Well, would she let the Congress write any law, control any behavior, tax any event or would she say, you know what, your conversation —


NAPOLITANO: — with your physician is private, the Congress can't regulate that? The words that you speak are protected by the First Amendment, Congress can't regulate that?

LEVINE: I'll give you an example. Congress tried to pass a law banning flag burning, right? That would be a violation of free speech which was granted to every individual American citizen and that would be overturned. That was overturned by Justice Scalia as well.


LEVINE: I mean, I'm a strict constructionist. I believe in following the literal language of the Constitution which is why, by the way, I'm so despondent about the Second Amendment jurisprudence which isn't based in the text of the Constitution.

NAPOLITANO: All right. We'll get to that to Second Amendment in just a minute.

Jay Sekulow, is Elena Kagan a progressive? Does she believe that the Constitution can be stretched and pulled if any direction the Congress wants, so as to let it regulate any behavior? As Justice Thomas feared, a Tupperware party if they want to regulate it?


Look, you just look at her actions. You know, she has no judicial record, but she — look at the situation with the military recruiting on Harvard's campus, you had a federal law that was in play that said you allow equal access to the military recruits.


SEKULOW: It's very straightforward. It's very simple. She says, no. She filed a brief and, Judge, the most liberal members of the Supreme Court of the United States, all nine justices, in fact, and the most liberal, disagreed with the position that Elena Kagan took in that case.

I think — look, a progressive? No doubt about it. And that's a reality of a consequence when you have an election. That's what you get.

NAPOLITANO: Ilya, is the reality of the confirmation hearings such that she will be confirmed no matter what she says because she's nominated by a president who's a member of the same party that has 59 senators and they only need 51 votes to confirm?

ILYA SHAPIRO, CATO INSTITUTE: Almost no matter what she says is right, I think, unfortunately.

But, look, this is more than about Elena Kagan, this is about the frustration and the reaction among the American people, in general, to all of these government takeovers of so many different sectors of our society, from banking to the auto industry, to student loans, to, of course, health care.

And the American people will see — if the Republicans do their job correctly — what the differences are in real constitutional interpretation and as Jay said, being a progressive and not really having any checks on government power despite what the Constitution says.

NAPOLITANO: Mark, probably long before she ever imagined that she would be in the hot seat, she commented in very — a very famous comment, now famous, that this confirmation hearings are bland as pabulum and members of Congress have a right to know exactly what the nominee thinks.

Question: Can the Republicans ask her things like, are you a progressive? Will you prevent the nationalization of banks or industries that the Congress decides it wants to own?

LEVINE: Well, the general reason the things are pabulum is because it's an understood rule and has been for decades by both Democrats and Republicans, that you don't ask a judge their views on a specific case. You ask them how they rule, what things they take into context, whether they, for example, believe in the text of the Constitution or they think that it changes over times, what they think about judicial activism.

NAPOLITANO: Well, let me stop you, Mark. Let me stop you.



NAPOLITANO: Does she believe that the Constitution is a living document that means something different today than it did 20 years ago or it will in 20 years? Or is she at textualist like Justice Scalia, who says it's meant the same thing for the past 230 years subject to the amendments?

LEVINE: See, I would not agree with your definition of textualism. She's not an originalist. In other words, she doesn't believe that whatever the Founders believed in things like slavery and no women's rights has to hold true today. But she is a textualist like myself.

I firmly believe in the text of the Constitution. When the Constitution says equal protection under the law, for example, the 14th Amendment, the people who wrote it didn't believe in equal protection for blacks.

But when you read the document by its plain language today, by its text, it gives all persons —


NAPOLITANO: Thank you, Mark.

Jay, do you think Solicitor General Kagan believes that the Constitution is a living document and can be stretched and told to accommodate anything that the Congress or the court wants it to accommodate?

SEKULOW: Judge, I'm afraid so. And I'm going to take it a step further and disagree with Mark's statements here. Look —


SEKULOW: — there is a — they are changing the definition of what we mean by textualist or originalist. That's what Mark just did.

The fact of the matter is, they believe in a living document. Now, the Constitution is living to the extent that there is an amendment process that allows for amendments, like prohibiting slavery.


SEKULOW: That's in the Constitution through the amendment process.

Here's the issue: Is she going to abide by that? Or is it going to be whatever she decides that day, not based on history, not based on the text? I'm afraid that's where it's going. That's the reality.

You got a case that's coming up right now, Supreme Court granted review today. And if she's confirmed, she's going to be hearing the case. It involves Arizona and immigration issue and federal authority.


SEKULOW: It's a big case. It's going to have huge impact. And I'm afraid this is where you're going to see exactly where Elena Kagan is.

NAPOLITANO: All right.

Ilya, in the grand scheme of things, is there likely to be any ideological shift as a result of her joining the court? Are we not just substituting one 50-year-old progressive for one now retired 90-year-old progressive?

SHAPIRO: Well, don't undervalue what that means, because if she serves another 40 years, that's significant. But more broadly, I mean, she — she does have the intellectual chops to be the liberal Scalia, if you will. So, this is a significant move much more than replacing Justice Souter with Sotomayor was.

But the types of questions that really need to be asked aren't about specific future cases, is the health care mandate unconstitutional? She's not going to answer that. But how about — give me three examples of activities that the Congress can't do using its Commerce Clause power. Give me three examples of government regulation that you think are currently in place that might not be in place in the future. There are ways of approaching things.

NAPOLITANO: Mark Levine, give us three examples where Elena Kagan thinks the Congress can exercise its commerce clause power, because it can find almost anything to be commerce, even somebody growing a plant in their backyard that they never sell, that they consume on their own, no cash exchanges hands, it doesn't go from one state to the next. The court can find that to be interstate commerce and let the Congress regulate it.

What do you say?

LEVINE: As you know, that's the United States Supreme Court holding and it has been for at least 50 years ever since the Ollie's Barbecue case defended civil rights. So, that is the current holding of the United States Supreme Court and I suspect she'll support stare decisis on this.

But I do want to make a distinction, if I could, very briefly between liberal textualism and conservative textualism.


NAPOLITANO: Let's not get too much into the weeds. Go ahead.

LEVINE: Well, it's important because look at the definition of person. Liberals believe that blacks are people and therefore are protected under the 14th Amendment, all right? Even though the Founders didn't believe that.

Conservatives believe corporations are people. Now, liberals say corporations aren't human beings, they're not people, so corporations —

NAPOLITANO: Wait, wait, wait, wait. Hang on. Hang on.


NAPOLITANO: This is not a liberal-conservative argument.

SEKULOW: Mark is changing — you're changing the context of the words. This is the typical liberal attempt to redefine what terms really mean.


SEKULOW: Right is right. Wrong is wrong. And that's it.

NAPOLITANO: Guys, this is what we'll be listening to all week. And, as you know, Mark, the court has held that the corporations are persons for the past 100 years. It has nothing to do with liberals or conservatives.


LEVINE: But if you're a textualist, you're against that.


NAPOLITANO: But gentlemen, thank you. We got to go. Thanks for joining us.

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