Pat Toomey: I would vote against Kagan

She's willing to give government far too much power

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Last year, I supported President Obama's nomination of Judge Sonia Sotomayor to the U.S. Supreme Court. In an op-ed, I noted that while I knew I would likely disagree with many of Justice Sotomayor's decisions, she was nonetheless worthy of support because objective qualifications should matter more than ideology in the judicial confirmation process.

I stand by that position and maintain that a president's selection should not be thoughtlessly vetoed or filibustered by the Senate based on the nominee's presumed ideology. Rather, the Senate should only deny a nominee if he or she holds positions outside the judicial mainstream or is otherwise hostile to basic constitutional principles.

The Supreme Court nomination of Solicitor General Elena Kagan presents a more challenging case.

Justice Sotomayor had a 17-year record as a federal appellate judge. I carefully studied that record before concluding that she merited support. Her record, despite being left of center, provided ample evidence of impartiality, respect for the Constitution and mainstream jurisprudence.

Ms. Kagan, lacking any judicial experience, offers no comparable reassurances. In fact, in three important areas, Ms. Kagan's record raises real doubts about her respect for legal and constitutional norms.

The Commerce Clause of the Constitution's Article I permits Congress to regulate economic activity between the states. This is of course necessary for a well-functioning national economy. Regrettably, the clause has become the vehicle of choice for judges and politicians to expand federal power into every manner of human activity, despite extremely attenuated connections to interstate commerce.

In recent years the Supreme Court has shown an encouraging willingness to reign in Commerce Clause abuses. However, in her Judiciary Committee testimony, Ms. Kagan expressed a view that envisions practically no limit to federal power. She would not even rule out the farcical example of a federal power to force citizens to eat three helpings of fruits and vegetables each day, all in the name of "regulating commerce." That view turns the notion of a government of enumerated powers on its head, substituting the anti-constitutional notion that that which is not expressly forbidden to Congress is thereby permitted.

Ms. Kagan's lack of appreciation for limiting federal power is all the more concerning as our politicians in Washington are now attempting to increase government's size and power in unprecedented ways. In the last two years alone, we have witnessed a stunning 25 percent increase in the size and scope of the federal government, and with that has come levels of debt never seen before in our history. In this context, an unlimited judicial view of the Commerce Clause could preclude restoring prudent limits to a rapidly expanding government.

Ms. Kagan's record is equally troubling in an area in which Congress is in fact expressly forbidden to meddle, namely, the First Amendment's guarantee of political free speech.

In arguing a case before the Supreme Court last year on behalf of the Obama administration, Ms. Kagan expressed the view that it was within Congress' power to pass a law that banned a pamphlet or book because of its advocacy of a political viewpoint. Ms. Kagan's position was rejected by the court. However, the very argument in favor of federal power to ban disfavored books is chilling. In her committee testimony, Ms. Kagan defended her action as simply advocating the government's view at the time, but she did not expressly disavow that view when she easily could have and should have.

Third, Ms. Kagan's decision as dean of Harvard Law School to deny military recruiters equal access to students is quite problematic. I share the view that the "don't ask, don't tell" policy regarding gay servicemen and women has outlived its usefulness and, subject to the military's conclusion of the feasibility of removing it, I support its repeal. However, one's disagreement with a federal law does not give one license to circumvent it. It took the Supreme Court itself unanimously deciding against Ms. Kagan's position to get her to reverse course.

Ms. Kagan unquestionably has a keen intellect and strong legal knowledge, and has earned the respect of many colleagues in the legal profession. But while we should not use ideological litmus tests to reject a Supreme Court nominee, nor should intellectual capacity be the sole qualification.

Ms. Kagan's record lacks the clear evidence of impartiality that Justice Sotomayor's had. Her positions on the Commerce Clause and First Amendment suggest a view of federal power that extends far beyond constitutional boundaries. And her treatment of military recruiters raises doubts about whether her decisions are guided more by policy preferences than respect for the law.

In the U.S. Senate, I would oppose Elena Kagan's nomination.


Pat Toomey is a former congressman from the Lehigh Valley and the Republican nominee for U.S. Senate ( www.ToomeyForSenate.com ).


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