When Supreme Court nominee Elena Kagan appears before the Senate Judiciary Committeethis summer, a crucial line of questioning must determine her judicial philosophy. Conservatives now have the opportunity to cultivate a groundswell of awareness on her legal opinions--and the public should demand that there be little obfuscation and that the hearings provide clarification of Ms. Kagan's views.
It is important to know, for example, the weight she gives the implied right to privacy in the Constitution. The issue will be important in determining the constitutionality of the health care bill which was recently signed into law since one of the challenges to this law will be whether or not the right to privacy extends to personal medical records. Roe v. Wade overturned several states' abortion laws, citing a woman's right to privacy; it will therefore be fascinating to see if a Justice Kagan would be as diligent in extending a right to privacy to people who want to keep their medical records confidential.
In addition, it is imperative to ascertain Ms. Kagan's views on such matters as the fundamental change in the relation between citizens and the law proclaimed in Massachusetts v. Environmental Protection Agency (EPA) in 2007. In that case, the EPA was reluctant to regulate CO2, believing it had no authority to do so until Congress passed a law specifically naming CO2 as a pollutant. The state claimed that CO2 as a pollutant would contribute to global warming and rising sea levels, which would cause a loss of coastline in Massachusetts. Based on this conjecture, Massachusetts claimed injury and was granted standing in the court, a matter four of the justices (Justices Antonin Scalia, Clarence Thomas, Samuel Alito and Chief Justice John Roberts) disagreed with.
The EPA argued that because CO2 was not specifically named in the Clean Air Act, the EPA had discretion on whether or not to regulate it. EPA was reluctant to regulate CO2 because the regulation of CO2 would introduce intrusive control over many and varied areas of American life.
The Supreme Court violated the separation of powers, ruling that the EPA, an agency of the Executive Branch, regulate according to the dictates of the Court. The Court charged the EPA with the power to set industrial policy by regulating the emission of CO2.In order to do this, the EPA would direct what types and how much industry will be allowed in any area of the country. In a free country, government guidelines and regulations become part of the decision-making process of individuals who wish to establish business, but do not set industrial policy. Moreover, as a result of this ruling, the EPA, a governmental agency was given the power to regulate human beings as emitters of a pollutant.
The ruling was decided 5-4, with four liberal judges voting in favor of the state, four conservative judges supporting the EPA and Justice Anthony Kennedycasting the deciding vote in favor of Massachusetts.
Massachusetts v. EPA, in deciding that CO2 is subject to control by a government agency, effectively defines people as polluters by virtue of an action which is beyond their control and makes people guilty of a kind of "original sin" in the eyes of the law. This view of citizens by their government is unheard of even in the most tyrannical regimes. The ruling opens the door to those who, concerned about urban sprawl and overpopulation, might petition the Court to order the EPA to regulate how many people live in specific areas.
This line of thinking may seem a bit alarmist, but the Court made extraordinary efforts to reach this ruling. Chief Justice Robertsobjected to the Court's acceptance of Massachusetts' projected injury in case of rising sea levels because the contention was "too speculative and without adequate scientific support"and argued that "even if there is a possibility that the state may lose some land because of global warming, the effect of obliging the EPA to enforce automobile emissions is hypothetical at best."It seems that such remarkable concessions would be extended only if liberals on the Court intend that the EPA eventually exert control over people and industry.
A candidate to the Supreme Court should be expected to address such issues. Normally, a nominee's prior writing is used by members of the Senate Judiciary Committee to ascertain the nominee's judicial philosophy and to frame questions that help the public and lawmakers become familiar with the criteria the nominee will use as a judge in making decisions.
Americans' instinctive resistance to the health care bill and to ballooning national debt is reassuring: People are alert to circumvention of the limits placed on the government by the Constitution. The public forum provided by the Kagan hearings offers conservatives an opportunity to frame questions in a way that makes an argument for the importance of limited government and a return to constitutionalism.
Attorney General Eric Holder was recently questioned by Republican Congressman Lamar Smith of Texas during a congressional hearing about whether or not he would consider radical Islam to be a factor in the motivation of recent terrorist attempts. He consistently dodged the question, flinching at the connection of the word "radical" to "Islam." His evasivereactions were as revealing as his answers. Ms. Kagan needs to be questioned in the same effective way in order to highlight for the public matters such as the ruling in Massachusetts v. EPA which remain largely overlooked but that may greatly impact American freedoms.
-Kerry W. and Peggy McCarthy are writers living in Indiana.
