Reductio ad absurdum is, for Democrats, a starting point

***Elena Kagan was asked yesterday the following question: If the Congress passed a law requiring all Americans to have three helpings of fruit and three helpings of vegetables every day, would that law be Constitutional under the Commerce Clause of the Constitution? While Kagan allowed that it would be a stupid law, she refused to deny that it would be a valid law in her view of the Supreme court's interpretation of the Commerce Clause. Now, it is clearly absurd that Congress could so intrude into the private life of citizens but the point is that the Commerce Clause, as loosely used to justify such things as the "individual mandate' in Obamacare, can be used to to justify ANYTHING. Soft tyranny by the government would thus be justified, inevitably followed by harder versions. The Constitution is an American's protection against this but not with activist justices who can justify ANYTHING, however extreme or absurd. When asked if the FCC could ban books it deemed offensive, Kagan's response was that, in 60 years, the FCC had never done so. She refused to see the parallel with the FCC's demanded right to ban non-book free speech. ***

****Then, the Democrats on the interviewing panel proceeded to be the pots calling the kettle black by inveighing against "results-oriented" justices, as if a justice unconstrained by any Constitutional limits on legislation, wouldn't be solely "results-oriented" i.e. holding for legislation she liked and rejecting the other kind. It's also funny that the AP report didn't mention the exchange quoted above although it was the most significant, being headlined in The DRUDGE Report. ****
Leahy predicts Kagan approval; hearings near end
WASHINGTON – Supreme Court nominee Elena Kagan neared the end of a grueling turn in the Senate Judiciary Committee witness chair Wednesday, and the senator presiding over the proceedings predicted her confirmation.
"Solicitor General Kagan will be confirmed," Sen. Patrick Leahy, D-Vt., told reporters during a pause in a third day of testimony by President Barack Obama's choice for the court.
There was no disagreement from minority Republicans, several of whom have spent the past two days challenging Kagan over her treatment of military recruiters while dean of Harvard Law School, her views on gun rights and her ability to set aside her political leanings if approved.
Obama nominated Kagan to replace retiring John Paul Stevens. If confirmed, she would be the fourth female justice in history and the third to don the robes on the current court.
Kagan, until recently, the Obama administration's solicitor general, spent much of Wednesday sparring with senators in both parties who pressed her to be more forthcoming about her views.
She declined several opportunities to criticize the current Supreme Court, saying, "I'm sure everyone up there is acting in good faith."
In a lengthy exchange with Sen. Sheldon Whitehouse, Kagan said pointedly she didn't agree with the Rhode Island Democrat's analysis that conservative justices appointed by Republican presidents were "driving the law in a new direction by the narrowest possible margins" in a series of 5-4 rulings.
Later, she sat quietly as Democratic Sens. Ted Kaufman of Delaware and Al Franken of Minnesota vigorously criticized recent court rulings. Both men said they would not ask her to agree with them, and she did not volunteer to do so.
Unlike the first two days of the hearings, there were few if any spectators in line to witness a bit of history. Democrats said Kagan's testimony would be completed by day's end. Obama has asked the Senate to confirm her in time to take her seat before the court opens a new term in October.
Republicans and Democrats alike expressed frustration that she wasn't willing to answer more questions despite having once written a book review saying Supreme Court nominees needed to do just that.
In something of a jab at her reticence to expand on numerous legal controversies, Sen. Jeff Sessions, R-Ala., said some critics are wondering what she believes and whether she would be more like Chief Justice John Roberts or Justice Ruth Bader Ginsburg.
Ginsburg, appointed by President Bill Clinton, is generally viewed as being a member of the court's liberal wing, cast into the minority on controversial 5-4 rulings.
Whitehouse seemed more concerned with Roberts and the other justices who frequently side with him in closely decided cases.
The Rhode Island Democrat cited a 9-0 ruling that banned school desegregation in 1954 and a 7-2 decision in 1973 that said women have the right to an abortion as examples of far-reaching cases decided by large or unanimous majorities joined by justices appointed by presidents of both parties. By contrast, he said, the current court had overturned precedent in antitrust law, gun ownership and other cases on 5-4 rulings joined only by "Republican appointees."
He asked what efforts the justices should make to return to a "collegial environment at the court" so controversial rulings are not decided so narrowly.
"Every judge, every justice has to do what he or she thinks is right," she said. "You wouldn't want the judicial process to become in any way a bargaining process," she said, although she added that the court and country are best served when the public "trusts the court as an entirely nonpolitical body."
Kagan did cast doubt on a key argument Roberts outlined in a recent case in which the court said corporations and unions are free to spend their own funds on political activity. In a concurring opinion as part of a 5-4 ruling, the chief justice said legal precedents whose validity is a matter of intense dispute can be toppled.
"It should be regarded with some caution," Kagan said of that line of thinking. She said that there were "stronger reasons" for overturning precedents, including if they became unworkable, if courts reverse the cases that helped establish them or if new facts have made them irrelevant.
Kaufman and Franken both joined in criticizing the decision about corporations and political activity.
The Delaware senator said the court's ruling was an example of `results-oriented judging, kind of reaching a decision and then trying to figure out how to make it happen."
Kaufman refrained from asking Kagan to agree, but then asked for an opinion on "results-oriented judging."
She replied, "I think results-oriented judging is pretty much the worst kind of judging there is."
Franken, too, criticized the court's ruling. "If that isn't outcome-oriented, I don't know what is. I'd love to ask you if you agree, but I don't want to force you to criticize your future colleagues."
****There is a substantive question about whether "stere decisis" should apply to 5:4 decisions since it is likely that the technical interpretation of the Constitution is not the issue but, rather, the personal positions of the justices. One might think that precedent should apply more strongly as the decision is more definitive, being generally useful for the efficient functioning of the SCOTUS, but recognizing that it should never be an absolute (Dred Scott being an example.)****