Joe Biden, mercifully, is no longer chairman of the Judiciary Committee, but we are being treated to one last slip-shod nomination-hearings performance by Arlen Specter, D-PA. He, like many of his colleagues, insists that Solicitor General Kagan sit through speeches about deference to Congress. This, he says, is an important principle.
Kagan responds respectfully. She’s at his mercy.
But what does he mean? Since 1937, the federal courts have been in the business of letting Congress have its way in regard to questions over which the Court had previously (rightly) said Congress did not have constitutional power. In light of the Court’s long-standing willingness to let Congress usurp the states’ power in this way, it is very odd that Specter should have thought that several Court nominees have needed to be thus hectored.
As to Kagan and her predecessors: these pious proclamations of intention to defer are inappropriate. The Court is charged with energetically exercising the powers assigned it.
Unfortunately for the Americans, the Court since the New Deal era has gotten into the habit of deferring. Instead of doing that, it ought to enforce the Tenth Amendment, as it did before 1937.
In the very same speech, Specter has gone on first to celebrate Brown v. Board of Education, and then to decry a system in which federal courts decide all the hot-button issues.
Old man, you are very confused. But then, as Robert Bork detailed decades ago, you have been very confused for a long time.
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