In Kagan's Supreme Court Hearings, GOP's Line of Questioning Panders to the Tea Party Crowd

Supreme Court nominee Elena Kagan may become the first modern justice whose vetting was designed to placate people in tricorne hats. Her three-day, nationally televised comfirmation hearings gave Republican members of the Senate Judiciary Committee lots of air time to pander to their constituents back home. And it was clear from the get-go that their talking points weren't intended to elicit Kagan's legal philosophy (they knew she was a liberal, after all) but rather to convince the unruly tea party movement that incumbent GOP senators are the standard-bearers of constitutional conservatism.

No one actually mentioned the tea partiers during the hearings, but they were there with their pitchforks in spirit. In past Supreme Court confirmation hearings, Republicans have traditionally focused on the usual hot-button social issues—abortion, gay rights, maybe even porn for good measure. And Kagan’s hearings certainly had all of those (crush videos instead of porn, though). But many of the main Republican themes about government overreach came straight from the tea party playbook—and for good reason.

Tea partiers revere the Constitution, which is at the heart of the Supreme Court’s work. They study it like evangelicals study the Bible. While much of their understanding of the document seems derived from Glenn Beck and 5,000 Year Leap author Cleon Skousen, many tea partiers are remarkably well versed in a wide range of constitutional law debates on everything from 2nd Amendment gun rights to whether the 10th Amendment check on federal power renders health care reform unconstitutional. And while public interest in the Kagan hearings seemed pretty low, if anyone was paying attention, it was tea party activists.

The Republicans didn’t disappoint. On Tuesday, Texas Sen. John Cornyn lamented that the tea partiers’ favorite 10th Amendment “has largely, in my opinion, been rendered a dead letter by Supreme Court decisions.” He bashed the recent “individual mandate” contained in the health care reform bill that has so energized the grassroots activists, saying, “If Congress can force people to—who are sitting on their couch at home—to purchase a product and penalize them if they don’t purchase the government-approved product, it seems to me there is no limit to the federal government’s authority and we’ve come a long, long way from what our founders intended.”

Republicans also devoted many of their Kagan questions to the Commerce Clause, which gives Congress a constitutional right to regulate interstate commerce. Small-government conservatives have long hated the Commerce Clause because Congress has invoked it to do everything from banning guns around schools to creating federal civil rights legislation. Tea partiers are strangely fluent in Commerce Clause rhetoric, so it’s likely they knew exactly what Sen. Tom Coburn, R-Okla., was talking about when he asked Kagan Tuesday night whether Congress could pass a law forcing Americans to eat vegetables three times a day. Both Cornyn and Sen. Jon Kyl, R-Ariz. hammered away at the same idea. Cornyn even demanded that Kagan name one activity that Congress couldn’t regulate with the Commerce Clause. (Of course, she didn’t.)

Coburn, an ob/gyn long known as a darling of the evangelical Christian wing of his party, deftly adopted the language of the tea party during the Kagan hearings. Once, he was practically shouting at her as he read from the Federalist Papers, another set of documents beloved by tea partiers. He even extracted a pledge from Kagan that she would go back and re-read them (perhaps right after she gets done writing a letter of recommendation for her friend Miguel Estrada, the right-wing lawyer Democrats filibustered out of a job as a DC circuit court judge in 2003). Coburn invoked the unhappy people of his state who have expressed to him their displeasure with the way the country is headed, and waxed nostalgic for the golden years of the Reagan era. He could have been giving a tea party speech on the need to “take our country back.” Alabama Sen. Jeff Sessions, the committee’s ranking Republican made a string of similar remarks.