Right-wing media--including Sean Hannity, The Drudge Report, National Review Online, and Hot Air--have abandoned conservative's oft-stated standard that Supreme Court should not answer certain questions in order to attack Elena Kagan's response to a line of questioning by Sen. Tom Coburn regarding the constitutionality of a hypothetical congressionally-mandated diet. In fact, Kagan was following the standard that conservative media have repeatedly urged and a standard that was used by conservative judicial hero Justice Antonin Scalia.
Kagan responsed to a question Coburn asked about whether a hypothetical federal law requiring Americans to eat fruits and vegetables is constitutional by explaining the constitutional precepts that the Court applies to Commerce Clause.
Coburn asked: "Is it within the constitution for me to write a bill having been duly elected by the people of Oklahoma to say -- and get it signed by the president -- that you have to eat three fruits and three vegetables every day?" Kagan -- who said such a bill would be a "dumb law" -- stated the principle that, under Supreme Court precedent, Congress' Commerce Clause power is broad, but Congress generally "can't regulate noneconomic activities, especially to the extent that those activities have traditionally been regulated by the states."
It seems that these media outlets are now suggesting that Kagan should specifically answer the question of whether the hypothetical law Coburn mentioned would be constitutional. But previously, conservative media and Republicans said that for Republican Supreme Court nominees John Roberts and Samuel Alito should not answer specific questions or discuss hypothetical cases during their confirmation hearings.
For instance, Hannity repeatedly suggested that Alito and Roberts didn't "have to answer specific questions." Republican Sen. Orrin Hatch (R-UT) specifically cautioned Roberts against answering specific or hypothetical questions. Hatch stated: "Nominees may not be able to answer questions that seek hints, forecasts or previews about how they would rule on particular issues." He later added: "Nominees may not be able to answer questions asking them to opine or speculate about hypotheticals outside of an actual case with concrete issues and real facts."
And during his 1986 confirmation hearing, Scalia -- a hero to conservatives -- specifically refused to answer questions on any constitutional issues saying that they might come before the Court. Scalia even refused to say whether he believed in Marbury v. Madison, the foundational Supreme Court case that established the power of the Supreme Court to strike down laws. (transcript from Scalia's hearing after the jump)
From Scalia's 1986 confirmation hearing (transcript available here):
The CHAIRMAN [Sen. Strom Thurmond (R-SC)]. Judge Scalia, the Supreme Court's decision in Marbury v. Madison is viewed as the basis of the Supreme Court's authority to interpret the Constitution and issue decisions which are binding on both the executive and legislative branches. Do you agree that Marbury requires the President and the Congress to always adhere to the Court's interpretation of the Constitution?
Judge SCALIA. Well, Marbury is of course one of the great pillars of American law. It is the beginning of the Supreme Court as the interpreter of the Constitution. I hesitate to answer, and indeed think I should not answer the precise question you ask--do I agree that Marbury v. Madison means that in no instance can either of the other branches call into question the action of the Supreme Court. As I say, Marbury v. Madison is one of the pillars of the Constitution. To the extent that you think a nominee would be so foolish, or so extreme as to kick over one of the pillars of the Constitution, I suppose you should not confirm him. But I do not think I should answer questions regarding any specific Supreme Court opinion, even one as fundamental as Marbury v. Madison.
If you could conclude from anything I have written, or anything I have said, that I would ignore Marbury v. Madison, I would too be in trouble, without your asking me specifically my views on Marbury v. Madison.
Scalia later said he didn't want to answer the question of whether Marbury is "settled" because he didn't want to prejudice a hypothetical litigant who came to the Supreme Court and asked for Marbury to be overturned:
Senator SPECTER. Judge Scalia, as I had suggested in a very brief opening statement, the questions that I have for you are limited to what I consider to be the "rockbed" propositions on the authority of the Court to decide questions of finality on the interpretation of the Constitution, as decided in Marbury v. Madison. This includes the issue of the Court's jurisdiction to make those decisions in the context of efforts by Congress to circumvent the court's power by cutting off jurisdiction. Another concern I hate is the issue of the incorporation doctrine. Starting with Marbury v. Madison, I believe you testified earlier that this case, which establishes the basic power of the Supreme Court to decide the final interpretation of the Constitution, is a settled issue as far as you are concerned?
Judge SCALIA. I said, Senator, it is a pillar of our system. I do not want to say that anything is a settled issue as far as I am concerned. If somebody wants to come in and challenge Marbury v. Madison, I will listen to that person. But it is obviously a pillar of our current system. Whether I would be likely to kick away Marbury v. Madison, given not only what I have just said, but also what I have said concerning my respect for the principle of stare decisis, I think you will have to judge on the basis of my record as a judge in the court of appeals, and your judgment as to whether I am, I suppose, on that issue sufficiently intemperate or extreme.
But I really do not want to say with respect to any decision that I would not listen to a litigant who wants to challenge it. I invite you and urge you to make your judgment. I think the question you are asking is quite a relevant question, and I would not want to confirm anybody that I believed would destroy certain decisions.
But I think the way you have to come to that judgment is on the basis of my past record as a thoughtful moderate lawyer and judge, and on the basis of my writings and my records in the past. I do not want to be in the position of saying as to any case that I would not overrule it.