- The Washington Times - Thursday, July 1, 2010

Now that the charade is over, the U.S. Senate can get on with confirming Elena Kagan as the ninth justice of the Supreme Court, succeeding John Paul Stevens. Not a moment too soon, either, lest the rest of us gag on the pabulum.

You can’t blame Mzz Kagan for playing possum. Anyone with a hint of judicial savvy has done it since the Democrats treated Robert Bork to a low-tech lynching in 1987 for his politically incorrect view of the Constitution. This was followed four years later by the attempted high-tech lynching of Clarence Thomas, who wouldn’t tug his forelock like a grateful field hand as the liberal Democrats expected as their due. Playing possum - pretending to be dead when the hounds come baying - is the only survival strategy available to nominees.

The Bork hearings were the last to resemble even a semblance of the original intent to use the hearings to discuss the Constitution and the nominee’s views on law, procedure and the philosophy of a constitution written in plain English. (It’s the plain English that stumps lawyers.) The Thomas hearings quickly descended into a comedy about uppity black Republicans, feminist sexual fantasies and pubic hairs on a Coke can. Mr. Bork’s name became a verb, as in “to bork a nominee with malicious irrelevancies,” which is useful for compilers of dictionaries but, like the tarred-and-feathered man being ridden out of town on a rail in Lincoln’s famous homily, an honor Mr. Bork would have been happy to decline.

This week Mzz Kagan did her best to say nothing, and her best was sufficient unto the day. She reduced the vapid to the insipid, as in an exchange with Sen. Tom Coburn over the limits of the Constitution’s Commerce Clause - written by the Founders to limit the power of the federal government and distorted by liberals, both on the Supreme Court and off, to enable the feds to expand the nanny state without limit. When Mr. Coburn asked whether Congress could enact a law requiring Americans to eat three fruits and three vegetables a day, Mzz Kagan replied: “That sounds like a dumb law.” Mr. Coburn was trying to get at her view of the Commerce Clause, and got a wisecrack. Mzz Kagan then added that the courts would be wrong to strike down a dumb law just because it was dumb. What’s not at all dumb about the question is that President Obama is relying on the Commerce Clause to defend his own dumb idea, the health care “reform.”

But not to laugh. The left is always eager to defend its dumb ideas. One of the girly-man columnists in the London Guardian, the bible of the British welfare state on which the left here wants to model an American welfare state, applauds the dumb idea of requiring a government-approved vegetable plate: “If everyone ate three servings of vegetables a day, we’d be living in an improved society. Heart attacks and obesity would reduce, health-care costs would go down … American farms would be making more money and on and on and on.” (Brussels sprouts and carrots can be tasty, even from a Liverpool short-order kitchen, but it’s the “on and on and on” that terrifies.)

It’s as if the senators and the nominees imagine that robust debate, risky for the nominee, has become unconstitutional. With such a large majority, Mr. Obama could nominate a serial killer (on parole, of course), a child molester or even a masseuse-harasser and get him past the Senate. Partisanship is all. But maybe frustration with what we’ve got suggests that nonpartisan disgust is growing, if slowly.

“Just when you’re thinking all hope is lost,” columnist Daniel Henniger writes in the Wall Street Journal, “along comes the ‘void-for-vagueness doctrine,’ invoked this past week by the Supreme Court to restrict a hopelessly vague law. If our era needs a bumper sticker, this is it: ‘Void for Vagueness.’ Paste it on the 2,000-plus pages of the new ObamaCare law, paste it on the 2,000 pages of the floundering financial regulation bill. Hand it out in front of Elena Kagan’s confirmation hearings.”

Since Mzz Kagan has never been a judge, we don’t have a judicial record to measure her by, and we must rely on her vague answers to vapid questions and can only surmise, suppose and speculate. She sounds like a reliable liberal, ready to stand up for the law of the nanny, enforced by the rod of the state. We won’t know for sure until it’s time to bend over.

*Wesley Pruden is editor emeritus of The Washington Times.

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