Some Real Questions For Elena Kagan

George Will has some real questions for Elena Kagan. Too bad nobody's going to ask them.

Instead of all the vapidness, and the concentration on irrelevant issues, George Will poses some real questions that the members of the Senate Judiciary Committee might consider asking Elena Kagan before they gavel the hearings to a close:

— Regarding campaign finance “reforms”: If allowing the political class to write laws regulating the quantity, content and timing of speech about the political class is the solution, what is the problem?

— If the problem is corruption, do we not already have abundant laws proscribing that?

— If the problem is the “appearance” of corruption, how do you square the First Amendment with Congress restricting speech to regulate how things “appear” to unspecified people?

— Incumbent legislators are constantly tinkering with the rules regulating campaigns that could cost them their jobs. Does this present an appearance of corruption?


— The Ninth Amendment says: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” The 14th Amendment says no state may abridge “the privileges or immunities” of U.S. citizens. How should the court determine what are the “retained” rights and the “privileges or immunities”?

— The 10th Amendment (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people”) is, as former Delaware governor Pete du Pont has said, “to the Constitution what the Chicago Cubs are to the World Series: of only occasional appearance and little consequence.” Were the authors of the Bill of Rights silly to include this amendment?


— The Fifth Amendment says private property shall not be taken by government for public use without just compensation. But what about “regulatory takings”? To confer a supposed benefit on the public, government often restricts how persons can use their property, sometimes substantially reducing the property’s value. But government offers no compensation because the property is not “taken.” But when much of a property’s value is taken away by government action, should owners be compensated?

These are real questions that would certainly provide a better insight into Kagan’s judicial philosophy than the undue praise we’re hearing from Democrats and the political grandstanding we’re hearing from Republicans. Too bad nobody’s going to ask them.

FILED UNDER: Law and the Courts, Supreme Court, US Politics, , , , , , , , ,
Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.


  1. Ugh says:

    Were the authors of the Bill of Rights silly to include this amendment?

    Yes, the 9th too.

  2. Steve Plunk says:

    Without the 9th and 10th we may not have the constitution we have. The bills of rights was put together and added in order to garner support. Just because government has chosen to ignore these two amendments doesn’t mean they can’t have a resurgence at a later time. We have recently seen such a thing with the second amendment.

    My problem with Kagan is her lack of judicial experience. She has been an advocate all of her life and it will be difficult for her not to be a policy advocate on the court. I know others have become good justices after a life of politics but her performance yesterday and her demeanor left me wondering.

  3. Herb says:

    Some of these questions are better than others. Here’s a good one:

    “How should the court determine what are the “retained” rights and the “privileges or immunities”?”

    And here’s a bad one:

    “Were the authors of the Bill of Rights silly to include this amendment?”

    Maybe we could just as the good open-ended ones she can answer, and leave all the leading ones off the table?