There seems to be one thing on which everyone can agree. From archconservative pundits to archliberal White House staffers responsible for Solicitor General Elena Kagan’s confirmation to the Supreme Court, all agree that the test is whether she is in the "mainstream of current legal thought."
But it would seem to me that such a standard only makes sense if you approve of where the mainstream currently is. For instance, left-wing statists — who believe in almost unlimited powers of government, who heartily approve of the Supreme Court’s ruling in Kelo v. New London (which authorized a city to take non-blighted private property from its lawful owner and give it to someone else solely so the city can make more money), who believe that the Interstate Commerce Clause authorizes Congress to regulate every action or inaction of everyone living south of Canada and north of Mexico — would like all current and future court nominees to enjoy wading in the current mainstream.
But wouldn’t it make sense for those of us who believe in original intent (and in this instance "us" would seem to include almost all Republican senators, based on their public statements) to support only nominees who hold to the standard of the mainstream of legal thought as of Sept. 17, 1787, when the writing of the Constitution was completed (or perhaps as of March 4, 1789, when the Constitution went into effect)?
After all, James Madison, who largely wrote the Constitution, obviously would be unqualified to interpret it today because it is a mathematical certainty that he would be appalled at the "mainstream of current legal thought."
For instance, consider a leering Democratic senator grilling Madison in 2010 on his views concerning the current mainstream theory of "a living Constitution," which requires that the Constitution be viewed in the context of today’s events. Being an honest man, Madison would have to repeat what he said whilst he was alive: "Do not separate text from historical background. If you do, you will have perverted and subverted the Constitution, which can only end in a distorted, bastardized form of illegitimate government."
Oh, dear, that puts Madison dangerously outside the current mainstream.
Or what if a sensible, moderate Republican senator were to inquire helpfully of Madison whether he sees any constitutional problem with Congress authorizing bureaucrats to promulgate hundreds of thousands of complex detailed requirements to enforce a universal health law. Again, citing his statements back in his living days, the honorable Madison would be compelled to testify: "It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood."
The notional senator doubtless would turn to the cameras and say: "My, my, what a Neanderthal backwoodsman this Madison character is — so out of the current mainstream of legal thought. How in the world could our federal government provide all the current and future ‘services and benefits’ to the citizens, if such thinking were permitted on the Supreme Court?"
That notional question is, of course, at the heart of what is quickening the countless millions in the Tea Party movement. If the Supreme Court would follow the dictates of the Constitution, much of the vast deficit-creating, individual-freedom-crushing current laws of the land would be unconstitutional.
Thus, Republican senators need to understand that, notwithstanding all their fine statements over the years about looking for justices who believe in "original intent" and don’t believe in "creating law from the bench" will be for naught when the Tea Party voters measure those Googled words against the senator’s Googled vote for Ms. Kagan because she is in the "mainstream of current legal thought." Changing the mainstream of current legal thought is a big part of what the November election is about.
Not just Tea partiers, either. According to Gallup’s most recent poll in 2009, 59 percent of Democrats like the ideology of the Supreme Court, but 58 percent of Republicans are not satisfied with its current ideology. Just 9 percent of Democrats think the court is too liberal, while 49 percent of Republicans think it is too liberal.
So when a Republican senator considers the appropriate standard for judging Ms. Kagan’s fitness for the high court, he should not be fooled by the responsible-sounding phrase "in the mainstream of current legal thought."
Rather, he or she should fall back on his own often-repeated original-intent, conservative standard and filibuster the brilliant Ms. Kagan’s confirmation vote precisely because she is in the current mainstream — a location that has been deeply dredged by Franklin D. Roosevelt and his progeny for the past 75 years.
This November’s voters look forward to the day when Madison once again would be found in the mainstream of current legal thought — as he was when he formed the original stream.