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And -- America today the Senate Judiciary Committee began hearings on president Obama's nomination having Elena Kagan.
To the Supreme Court of the United States it goes without saying that this is one of the more important things that the president and the Senate do.
Presidents come and go senators are defeated and retire Supreme Court justices serve for life.
What to expect.
We can expect that the Democrats will praise there as brilliant and qualified.
And the Republicans will try to show that her views of the relationship of the federal government to individuals.
Are out of step with what most folks expect and inconsistent with what the constitution requires.
The constitution as the supreme law of the land -- I say that.
Because the constitution itself says that it is -- is the basis of the American rule of law why I say that.
Because everyone who works for any government and the US local state and federal takes an oath to uphold the constitution.
The people have a right to expect that their representatives and their judges will uphold the constitution.
Come what may.
Is that a realistic expectation -- a fanciful one while few months ago.
I asked congressman Jim Cliburn the number three ranking Democrat in the house about where in the constitution.
The congress gets the power to regulate health care his answer was very telling take a listen.
Where in the constitution is the federal government charged with maintaining people's health.
What does not in the competition alluded they have not -- the competition if there's a -- government.
They're -- to do that most of -- got to reduce.
Okay there's one member of congress who does not believe he's committed to following the constitution.
Unfortunately most other members of congress agree with him in recent years congress has voted -- -- federal agents the power to write their -- search warrants.
You know the constitution says that only judges may do so congress has voted to make it a crime he didn't tell anyone you've received a self written search warrant.
Even -- the constitution says congress shall make no law abridging the freedom of speech.
It has voted to put -- federal bureaucrat between you and your doctor.
Even other Supreme Court has ruled the what you tell your doctor what he or she tells you who is not of the government's business.
And congress has voted to give billions to its favored banks and labor unions even though the constitution nowhere permits that.
What does this have to do with the Supreme Court.
You see it is the court's job to decide if congress has been faithful to the constitution.
Not whether what congress has done is wise or fair.
But is it constitutional.
That's why federal and some state judges and certainly justices of the Supreme Court have like ten year.
So they don't get caught up in the politics of the moment like the president and the congress -- Don't like what BP did in the golf intimidate twenty million dollars from them which the economic crisis hadn't occurred -- of cash and give it away.
Is that what the constitution permits of course not.
That's why we have life tenure judges and that's why we have a Supreme Court think about it.
When it works as it should the judiciary is the anti democratic branch of government.
It keeps the other two branches confined within the constitution.
If this were not so nothing would prevent the majority from taking the liberty or the property of the minority.
That brings us back to Elena Kagan.
Will she vote to protect freedom.
Will she vote to let the congress regulate any activities or tax any events it wants.
She will soon have the power.
With four other justices to permit -- to stop abortions to stop the president on the military to tell the president on the congress.
And the states how to stay within the constitution.
How will she use all that power.
Here's Republican senator Jeff Sessions -- also the ranking member of the Senate Judiciary Committee.
Welcome here what -- you ask thank you Elena Kagan tomorrow.
And what -- expected to tell you.
I'm gonna talk turn about.
And down whether or not we have a commitment.
That she's part on the mainstream.
-- understanding that our constitution must be followed whether you like it or not.
American people believe that overwhelming margin but many -- -- justices.
Quite proud of their.
-- this tendencies and -- many -- praise for taking steps to advance the law.
Which means really to advance the of the political agenda of the judge this morning at the -- some -- -- we'll talk about you this morning at the judiciary hearing senator sessions you made a very impassioned and compelling.
Argument about progressive this and I mean this is the philosophy that basically says.
You can -- -- twist the constitution anyway you want so the government can regulate any activity tax any event.
That that it thinks it needs to be -- progressive does she believe that.
Did you find this out before you have to vote up.
Well we're gonna ask about that and now will that we definitely well I know that EJD on writing about the hearings today.
Colin on the progressive members of the Senate.
Conte did they -- a bicycle lay out rise up.
And he made reference to Brandeis who I think -- Was a non not progressive I'm tired jurist so that's it does look like progressive ism is on the rise again.
And it suggests.
And implies -- even states.
That the constitution is an impediment gets in the way of our ability to carry on the agenda we won't.
Like that constitutional right to keep and bear arms -- goodness we don't like that.
That's an impediment to our vision of what's.
-- for big city.
So we'll just -- -- out of the constitution all right Weis is that dangerous philosophy when that then judge Sonia Sotomayor appeared before your committee and you were one of the other Republicans asked terror.
If the Second Amendment guaranteed an individual right to keep and bear arms she said it does.
In today's case and the Second Amendment she said it doesn't or she can't find where it does to -- her almost precisely.
Question does it matter what they say -- your hearings once they're confirmed they do whatever they want anyway.
When I said in my statement that words that they hearing and not just enough here actions in your records speak to.
Sometimes they speak more loudly so we need to -- book -- you know dig deeply in the that senator Coburn.
-- -- that in his comments instead you know why don't you just tell us the truth what you think.
How we -- he -- you know we've got we've we've got to get beyond this bland statement.
Now we'll just follow the law because -- you know judge.
For an activist judge they can simply redefined the meaning of the words in the law and playing there following right now the danger we have.
Justice said Jackson for whom a young William Rehnquist clerk one said there.
Infallible because their final they're not final because they're infallible there's no there's no appeal from them but.
It isn't her confirmation.
A foregone conclusion and if it is what's the most.
That those of us who believe in limited government can hope for from these hearings.
I think we need to expose the idea that if you -- -- -- talking parts.
-- ceding power to the judiciary to set policy is an anti democratic act.
It reduces the power of every American citizen.
And it's a danger to the -- we've been given and we need to fight back one thing on -- elections and make a difference maybe some of the senators.
Maybe the next presidential election we'll talk about these issues with -- clarity and votes can make a difference in the long run but right now.
There is a huge democratic majority who can don't want to support the president right but -- -- nominated not clear.
About her commitment to the law I think most Americans will not be happy.
Senator Jeff Sessions Republican from Alabama the ranking Republican on the Senate Judiciary Committee we will be watching you all week thanks for joining us.
And editor in chief of the Cato Supreme Court review.
And Mark Levine a former congressional attorney and host of radio inside scoop dot com.
Gentlemen welcome to the Glenn Beck program.
Martina durst is there any area of human behavior.
That he Elena Kagan what acknowledge is not subject to congressional regulation.
Any element of human behavior that that's that's pretty why not be more specific.
Well which she that the congress write any -- our control any behavior tax any event or what you say you know why it.
You conversational your position is private the congress can't regulate that the words that you -- -- -- -- the by the First Amendment congress can't regulate that.
I give an example -- congress tried to pass a law banning flag burning.
Right and that would be a violation of free speech was granted to every individual American citizen.
And that would be overturned and that was overturned by Justice Scalia as well so it's I mean -- a strict constructionist I believe in following the literal language of the constitution.
Which is why by the way I'm so despondent about the Second Amendment jurisprudence -- -- -- based in the text of the current we'll get to the Second Amendment just a minute chase.
Secular -- is I -- Kagan a progressive.
Does she believe that the content constitution to be stretched and pulled.
In any direction the congress wants -- -- a letter regulate any behavior and watched as Justice Thomas once feared a Tupperware party if they want to regulate it.
I'm afraid so -- looking you've just look at her actions -- -- you -- judicial record -- You look at that situation with the military recruiting on Harvard's campus -- a federal law that was.
In play that said you allow equal access to the military -- it's very straightforward it's very simple.
She says no she -- a -- again it and and judge.
The most liberal members of the Supreme Court of the United States all nine justices in fact and the most liberal disagreed with the position.
Elena Kagan to connect case I think look -- it's a progressive no doubt about it that's reality but consequence when you have an election that's what you get there.
Billion is the reality have the had confirmation hearings such that she will be confirmed almost no matter what she says.
Because she's nominated by a president who's a member of the same party that has 59 senators and they only need 51 votes to confirm -- Almost no matter what she says is right I think unfortunately but look this is more than about Elena Kagan this is about.
And the reaction in among the American people in general to.
All of these government takeovers of so many different sectors our society from banking to the auto industry to student loans to of course health care.
And the American people see if the Republicans do their job correctly.
What the differences are in real constitutional interpretation.
And as Jay said being a progressive and not really having any checks on government power despite what the constitution says.
Mark probably long before she ever -- that she would be in the hot seat she commented and very every famous comment now famous.
That these confirmation hearings are bland -- problem.
And members of congress have a right to know exactly what the nominee thanks question.
-- -- Republican to ask her things like.
Are you a progressive will you permit the nationalization.
Of banks -- industries at the congress decides that it wants to own.
Well the general reason why these things are album is because it -- understood -- and has been for decades by both Democrats and costs and Republicans.
That you don't ask a judge their view on a specific case you asked them how they rule what things they take in the context whether they for example believe in the text of the constitution and I think that.
It changes over time what they think about just lacked adequate obviously -- don't want it may be -- -- believe that the constitution as a living document.
That means something different today than it did twenty years ago or will twenty years from now or -- -- -- like Justice Scalia who says it's -- the same thing for the past 230 years subject to the amendments.
Well I think I wouldn't agree with your definition of textual of them she's not an original it's not what she doesn't believe that what ever the fathers believed in things like slavery in the women's rights.
Have to hold true today but she is a -- -- like myself I firmly believe in the text of the constitution the constitution says equal protection of the laws for example the -- amendment the people who wrote it.
Didn't believe legal protection for blacks but when you read the document by its plain language today by its -- you know it -- all -- okay Jason robots do everything black senator thank you mark.
That the constitution as a living document and can be stretched and pulled.
To accommodate anything that by congress or the court wants it to accommodate.
Judge I'm afraid so and I'm I'm gonna take a step further -- disagree.
-- with mark statements here look that there is a -- they're changing the definition of what we mean by textual is or original us.
That's what mark just dead.
The fact of the matter is they believe in a living document -- the constitution is living to the extent that there's an amendment process that allows for amendments like prohibiting slavery right that's in the constitution through the amendment process here's the issue.
If she going to abide by that -- to going to be whatever she decides that date not text based on history not based on the tax I'm afraid that's where it's going that's reality you've got a case it's coming up right now Supreme Court grand review today she's -- -- -- be hearing the case.
It involves Arizona an immigration issue and federal authority in the big case is gonna have huge impact and I'm afraid this is we're gonna see exactly related that -- -- in the grand.
Scheme of things it's very likely to be any ideological shift as a result of her -- the court are we not just substituting one.
Fifty year old progressive for one now retired nine -- year old progressive.
Well don't under value what that means because if -- serves another forty years that that's significant.
But now more broadly I mean she she does have the intellectual chops to be.
The liberal Scalia.
If you will so this is a a significant move much more -- now replacing Justice Souter with Sonia Sotomayor was.
But the type of question that really need to be asked aren't about specific future cases it is the individual health care mandate unconstitutional she's not an answer that.
How about give -- three examples of activities that that the but congress can't do using its commerce clause power give me three examples of -- Government regulations that you think that are currently.
In place that that might not be in place and future market there are ways of approaching things Mark Levine.
Give us three examples where Atlantic -- thinks the congress can exercise.
It's commerce clause power because it can -- -- have anything to be commerce even somebody.
Growing up slammed in their backyard that they never sell but they consume on the road no cash exchanges hands it doesn't go from one state to the next.
The court can find that the -- interstate commerce and let the congress regulated what do you say.
-- you know that's the United States Supreme Court holding it has been for at least fifty years ever since Dolly's barbecue case defendants' civil rights to that is the current holding of the United States Supreme Court.
And I suspect she'll support start decides it's on this but I do wanna make a distinction if I could very briefly between liberal potential as a conservative text was emblematic example and we -- -- -- -- What they is important because the look at the definition a person liberals believe that blacks are people and FR protect and the fourteenth amendment.
-- right even though the founders didn't believe that.
The sort of believe that corporations are people know liberals think corporations aren't human beings they're not people so corporation -- the -- -- Iraq.
I think -- you're -- -- external hard.
Has it changed -- changes the context of the words this is the tip tip but coal.
Liberal attempt to redefine what terms really mean again he does -- -- we'll be right there right or wrong is wrong and that's it guys this is what will be listening to all weekend as you know mark the court has held that right corporations are persons for the past hundred years.
There's nothing to -- liberals -- conservatives but -- but it's not exactly what you're you're gonna -- thanks for joining -- thank -- up next a look at the violence and the outcome of the -- wanna stay with.
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