ABC News' Rick Klein reports: Oklahoma Sen. Tom Coburn has provided some of the most contentious exchanges of the rather tame Elena Kagan confirmation hearings. He's raised questions about Kagan's generally liberal political beliefs, and contends that Kagan would usher in vast expansions of government power as a member of the Supreme Court.
On ABC/Washington Post’s “Top Line” today, Coburn ratcheted up his critique of Kagan, saying she hasn’t been as forthcoming about her views as she should be, and questioning her interpretation of the Constitution’s Commerce Clause as well as her expressed willingness to follow court precedents.
“I think the thing that's very worrisome is that she has a very expansive view of the Commerce Clause, and I find that she's ignorant of the Constitution's limitation of that, especially what our Founders wrote,” Coburn, R-Okla., told us.
“And her reliance was that, ‘Well, here's the precedent that's been set, and we can't go back to original intent,’ which comes back to another thing that she said earlier in the hearing -- is that precedent trumps original intent. And I think most Americans would reject that. If that was the case, then we would have never had Brown vs. the Board of Education, and Plessy-Ferguson would still be the law. And to have a Supreme Court nominee that actually says precedent trumps original intent is worrisome, in my opinion.”
As far as what his concerns amount to, Coburn said he isn’t prepared to say that a GOP-led filibuster won’t be warranted.
“I wouldn't rule out a filibuster,” he said. “Look, my two main concerns are …: We're in trouble as a nation, and one of the reasons we're in trouble is the expansion of the federal government into areas that our Founders never thought we should be in. And we have a nominee to the Supreme Court that is fully embracing that and with no limits in terms of the Commerce Clause. So to me, that's very concerning. The second point I would make, again, is that she believes precedent trumps original intent. And she defended that. And so that -- both those things are very concerning -- should be very concerning to the American people.”
Coburn also said he’s concerned that Supreme Court confirmation hearings don’t serve a useful purpose.
“This is a relatively new phenomenon in our country's history, and I'm not sure they're beneficial for us other than to show -- to be a show,” Coburn said. “So my hope is, is to make 'em as serious as they can be, and also ask the hard questions so that the American people can see what somebody believes, what they think. And she also had written an article about she thought she ought to be forthright. I'm not sure she's as forthright as she professed that others should be.”
Coburn said he was troubled by the decision Kagan made to ban military recruiters from Harvard Law School’s office of career services:
“I think that you can sum up the military recruiting issue at Harvard is that she valued the doctrine of Harvard more than she valued the U.S. law. And I don't know whether she's been forthright or not -- I don't know the details and what actually went on there -- but her decision was to honor Harvard's rules more than honor the law. And I think that's problematic.” Coburn said he couldn’t say whether he would have confirmed Thurgood Marshall – Kagan’s legal mentor – to the Supreme Court, or how he would have voted on Justice Ruth Bader Ginsburg’s confirmation.
Marshall was confirmed 69-11 in 1967, and Ginsburg won confirmation on a 96-3 vote, in 1993.
On whether he would supported Marshall, Coburn said, “I have no idea. I don't know his writings. And I haven't -- I think that's an important part of her history, but I don't think it's near as important as the two things that I just mentioned.”
On Ginsburg, Coburn said: “Well again, I can't tell you, but I did watch some of her hearings when I was -- I was not in politics at the time. And the fact is, is she didn't ever answer a question. And so, you know, you oughtta have to answer a question, and she answered none.”
Watch the full interview with Sen. Tom Coburn HERE.
For our “Post Politics” segment, we chatted with Dana Milbank of The Washington Post about Kagan’s attempts at humor, plus the congressional candidate who has summoned the ghost of Abraham Lincoln in his run-off race.
Watch the portion of the program with Dana Milbank HERE.