During Elena Kagan's 2010 Supreme Court confirmation hearings, Republican Sen. Tom Coburn of Oklahoma asked the future justice if she believed Congress had the power under the Commerce Clause to force Americans to "eat three vegetables and three fruits every day." Laughing in response, Kagan said that while it sounded "like a dumb law," that did not necessarily make it an unconstitutional one. "I think that courts would be wrong to strike down laws that they think are—are senseless just because they're senseless," she continued, adding later, "the principle protector against bad laws is the political branches themselves. And I would go back, I think, to Oliver Wendell Holmes on this. He was this judge who lived, you know, in the—in the early 20th century. Hated a lot of the legislation that was being enacted during those—those years, but insisted that if the—if the people wanted it, it was their right to go hang themselves."
In other words, Kagan effectively admitted that Congress did in fact possess the power to force broccoli purchases, at least under her interpretation of the Commerce Clause. And if you don't like that fact, her answer continued, take your complaint to the ballot box, not to the courthouse, since the judiciary owes deference even to "senseless" laws.
I dig up all of this ancient history because Kagan's answer to Coburn was deployed recently as a weapon against Republican Sen. Rand Paul of Kentucky. Writing at The Atlantic, liberal legal commentator Garrett Epps found himself in the uncomfortable position of mostly agreeing with the point of Paul's anti-drone filibuster last week while simultaneously disagreeing with Paul about almost everything else. Epps' solution was to denounce Paul as a "demagogue" before reluctantly admitting, "One doesn't have to be Rand Paul to see that this administration's approach to public discussion of the new reality has been grudging at best and disingenuous at worst."
To call someone a demagogue is not to compliment them, of course, so I was curious to discover how Epps would support this unkind allegation. Here, in its entirely, is how he tried to do it:
Paul likes to distort quotes from his political foes—witness his earlier claim that Elena Kagan had said that the government could require citizens to eat broccoli, when the record shows clearly that she didn't.
But that Paul is a demagogue doesn't diminish the administration's ham-fistedness in the drone-war debate. There's a growing suspicion that its flawed responses represent not simply inept spin but a troubling ambivalence about the rule of law.
It's true that Kagan never used the word yes in response to Coburn's question, as Paul apparently said that she did, but Epps' case disintegrates beyond that. Not only did Kagan clearly state that "senseless" laws (like the "dumb" fruit and vegetable mandate hypothesized by Coburn) could still be upheld as constitutional, she specifically invoked the example of Justice Oliver Wendell Holmes, the Supreme Court's most famous advocate of judicial deference to lawmakers, a jurist who believed the Constitution should almost never interfere with "the right of the majority to embody their opinions in law." So Kagan basically told the country that the Supreme Court had no business interfering with Congress' powers under the Commerce Clause.
If liberals like Epps are committed to denouncing Paul every time they find themselves agreeing with him on drones, they should at least try to come up with a more plausible line of attack.