Elena Kagan Could Decide Whether We’re Stuck with ObamaCare — Permanently

The constitutionality of ObamaCare will almost certainly come before the Supreme Court in the next two-to-­four years. And Elena Kagan, Obama’s nominee for the High Court, could be the deciding vote on the question of whether it is upheld — transforming our country forever — ­or whether it is overturned.

Similarly, on every “hot button” issue where we have learned of her involvement, Kagan has been reliably on the Far Left.  On guns, she helped draft a directive in favor of a semiautomatic import ban — and, as a law clerk, advised against allowing the Supreme Court to hear arguments that the D.C. gun ban was unconstitutional. This is particularly relevant because gun cases interpreting District of Columbia v. Heller will be coming to the court by the dozens in future years.

And yet there are conservatives groveling after “respectability” in places like MSNBC by pretending Kagan’s confirmation doesn’t matter — or might even be a good thing.

Why Would Kagan Make a Difference on ObamaCare?

For those of us who have been tirelessly fighting ObamaCare for over a year, it may come down to this:

The Supreme Court, in Printz v. United States, 521 U.S. 898 (1997), in a 5-4 majority opinion written by Antonin Scalia, held that “he federal government may not compel the States to enact or administer a federal regulatory program.”  Similar Commerce Clause cases have garnered similar margins.

So, although the composition of the court has changed since 1997, everyone assumes there are currently five votes to overturn ObamaCare under this principle.  But here’s the rub: “swing vote” Anthony Kennedy has shown that he is capable of being moved to take absurd positions, either by the pressure of public opinion or of internal suasion from within the court — as he did in the landmark “global warming” case of Massachusetts v. EPA.

And Barack Obama has made it clear that he is nominating Elena Kagan for just that assignment.

Kagan: ObamaPet

Just for the record: It doesn’t matter that Kagan has never been a judge — or even that she has never publicly thought large thoughts about big issues.

The late William F. Buckley, Jr., talked about naming non-lawyers to the Supreme Court.  But there’s a caveat here: It wouldn’t matter that Kagan had no service on the bench, no significant writings, or no paper trail IF she hadn’t spent her life as a liberal hack, moving from one Democratic administration or judge to another — and retreating to the Boston sanctuary for “Democrats in exile” when her party wasn’t in power.

So what does matter is this:  Notwithstanding the Obama administration’s trademark revisionist spin, there is absolutely nothing in Kagan’s record to suggest that she is anything other than an “ObamaPet” who would cast a reliably liberal vote on all issues (including ObamaCare, guns, and abortion) — and might bring “swing vote” Anthony Kennedy with her.

And when we say there is “absolutely nothing” to suggest that Kagan is anything but an Obama rubber stamp, we are referring to:

* Her consistently far-Left employers — Thurgood Marshall, Abner Mikva, Bill Clinton, Janet Reno, Barack Obama and Eric Holder.

* The $12,050 she gave to Democratic campaigns over 8 years.

* The fact that she RELUCTANTLY retreated on military recruitment on-campus, after she lost in the Supreme Court and it became clear that Harvard might lose all of its federal money.

* The fact that she totally boycotted conservatives in the nearly 50 hires she made during her Harvard tenure (and incidentally, though not publicized, she didn’t exactly boycott liberals).

* The fact that she has never, ever taken a conservative or moderate position on any public issue — except for her obligatory role of defending the government — and to occasionally recognize (as with the District of Columbia v. Heller gun case) that the Supreme Court has decided the law to be such-and-­such.

* Her generally applauded stand on behalf of expanded executive branch power, especially at a time when it is far from clear about the extent to which the Qbama administration will apply its very broad powers to go after Second Amendment militia groups.

Over the next thirty years, the Supreme Court will REPEATEDLY hear cases on guns, abortion, and the scope of federal regulatory power. Conservatives can’t win any of those issues in the courts, but we could lose them there — all of them.

So, for those who feel it is a fair swap for losses on these issues because Kagan seems inclined to expand the Obama administration’s Article II authority, they may want to think again.

Is Kagan’s Lack of Judicial Experience a Good or Bad Thing?

We are now treated (on the Chris Matthews program) to statistics on the number of justices on the Supreme Court who have had no judicial experience.

Fine. Except that, through most of America’s history, it was not expected that the Supreme Court might elevate itself to a super-legislature on the most charged political issues of the times.

In modern times, of course, the archetype for the elevation of a liberal no-judicial-experience hack­-politician to the Supreme Court came when Eisenhower nominated a governor of California who had had no service on the bench. He was Earl Warren, and he was the one who made a liberal, activist, politicized court thinkable.

And while we’re on the subject, one final thought:  Despite revisionist protestations about how Kagan could not swing Kennedy on ObamaCare because “that’s not how the Court works,” the history books are replete with stories about how, for instance, Warren politicked for the unanimous result in Brown v. Board of Education.

“The Justice from Goldman Sachs”

In 2008, Kagan received $10,000 from Goldman Sachs for serving as a member of the Research Advisory Council of the Goldman Sachs Global Markets Institute. And, yes, this is the same “Goldman Sachs” that it now being vigorously pursued by the Securities & Exchange Commission.

This doesn’t matter, argue Kagan’s apologists, because she was just a low-level “speechifier” on public policy and did not run the company.


If anything, it is even worse that Kagan lent her prestige and that of her university to Goldman Sachs for her 10,000 pieces of silver so that poor schlubs would be duped into following its advice.

Make no mistake about it: Barack Obama is currently working hard to sunset any true free market in the financial services sector based on how totally, unadulteratedly EVIL he perceives Goldman Sachs to be.

And so, what does he do? He nominates the “Justice from Goldman Sachs” to the Supreme Court?!

It’s like the insurance companies that were vilified in order to pass ObamaCare, and then given the forced patronage of 30,000,000 Americans by Obama as “hush money.”

If Goldman Sachs is sufficiently evil to warrant federal government control of Wall Street, then it is sufficiently evil to taint those who received overly generous payments to make it look benign.

Why Would any Conservative Support this Nomination?

There are some.

It harkens back to a way of thinking which gained steam in the 1990’s and is still popular in some conservative legal circles. It was this: If Republicans refrain from blocking the crazy Left-wing nominees of Bill Clinton (and now Barack Obama), Democrats will support intellectually qualified Right-wingers.

Yeah?  How’d that work out?

Over the past two-and-a-half decades, an erstwhile ACLU board member was confirmed to the Supreme Court, while Robert Bork — one of the great legal intellects of our time — was humiliated and defeated. Attorneys for conservative counterparts of the ACLU — groups like the National Rifle Association and the National Right-to-Life Committee — aren’t even in the mix for court appointments, even under Republican presidents.

One well-known conservative attorney vouches for Kagan because of her “intellectual accomplishments.”  Really?  More than Robert Bork’s?


Make no mistake about it:  USA Today has now painted Barack Obama as the “new Franklin Roosevelt.” And — give the devil his due — Obama is on the verge of transforming America in a fundamental way that cannot be reversed — if Senate Republicans don’t show more courage than they’ve shown to date.

Obama has reached this point through the ruthless pursuit of his Leftist policies — through bribes, intimidation, fraud — whatever it took. And, while no one is suggesting the GOP do the same, Republicans are going to have to show that issues matter passionately to them — and that Obama’s fraud and corruption will be met with the same indignation that Democrats have, for years, heaped on Republicans.

It comes down to this:  If Senate Republicans are not willing to do what it takes to stop the swing vote on ObamaCare from being confirmed, why should we expect them to lift a finger to repeal it — after they have sucked the electoral advantage from the issue?

Mike Hammond is the legislative counsel for Gun Owners of America.