Listen carefully as the votes on Elena Kagan’s nomination to the Supreme Court are taken beginning this week. Most court nominations are about judicial philosophy or social issues, but Ms. Kagan’s has become a flashpoint for a much larger debate about the fundamental role of American government.
Ms. Kagan has demonstrated an impressive legal mind and was both calm and firm under attack from Republicans during her hearings. Voting for her to take her place on the court should be an easy call.
Yet dozens of Senate Republicans are ready to vote against her, and many are citing her interpretation of the commerce clause of the Constitution, the one that says Congress has the power to regulate commerce among the states. At her confirmation hearings, Ms. Kagan refused to take the Republican bait and agree to suggest limits on that clause’s meaning. This infuriated the conservatives on the Senate Judiciary Committee because it has been that clause, more than any other, that has been at the heart of the expansion of government power since the New Deal.
The clause was the legal basis for any number of statutes of enormous benefit to society. It is why we have the Clean Air Act. The Clean Water Act. The Endangered Species Act. The Fair Labor Standards Act, setting a minimum wage and limiting child labor. The Civil Rights Act of 1964, outlawing segregation in the workplace and in public accommodations. In cases like these, the Supreme Court has said Congress can regulate activities that have a “substantial effect” on interstate commerce, even if they are not directly business-related.
http://www.nytimes.com/2010/07/20/opinion/20tue1.html?th&emc=th
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