RUSH: Hey, Mike, grab sound bite number eight, go a little bit out of order here as we get to the Elena Kagan hearings, the Obama rubber-stamp hearings. Even TIME Magazine has a story out there, ‘Are these hearings even relevant anymore?’ And the reason they’re asking that is ’cause it’s boring as hell. Nobody’s challenging her on things except Jeff Sessions. She’s getting away with saying she doesn’t know what progressivism is. It’s like saying she doesn’t know what liberalism is. I’ll tell you what, we have so successfully tarnished the terms liberal, progressive, whatever they want to call themselves, they can’t afford to identify with them. She’s out there claiming to have no clue what progressive legalism is. That’s like saying that Marx has no idea what communism is. And I’m not exaggerating. Now, yesterday Tom Coburn asked her a question during the Q&A. He said, ‘What about the commerce clause and the federal government telling people what they can and cannot eat?’
COBURN: If I wanted to sponsor a bill, and it said, ‘Americans, you have to eat three vegetables and three fruits every day,’ and I got it through Congress, and it’s now the law of the land, does that violate the commerce clause?
KAGAN: It sounds like a dumb law.
COBURN: I got one that’s real similar to it I think is equally dumb.
KAGAN: But I think that the question of whether it’s a dumb law is different from whether — the question of whether it’s constitutional. And I think that courts would be wrong to strike down laws that they think are senseless just because they’re senseless.
COBURN: Do we have the power to tell people what they have to eat every day?
KAGAN: Senator Coburn —
COBURN: What is the extent of the commerce clause? We have this wide embrace of the commerce clause which these guys who wrote this never, ever fathomed that we would be so stupid to take our liberties away by expanding the commerce clause this way.
RUSH: She would not deny that the federal government has the power through the commerce clause to tell us what we can and can’t eat. She would not deny it, because she wants to reserve that power for herself and for her friends on the left. If the commerce clause is so powerful why wasn’t it used to do away with slavery? But here’s the real irony in this. Liberals tell us in the Constitution there is a right to privacy regarding a woman’s reproductive rights. But there is no right to privacy when it comes to all of our digestive rights. That’s essentially what Kagan is saying here. The government telling us what to eat — and, by the way, it’s not a theoretical question. They already do. Go to New York and try to get some trans fat. If the mayor up there gets his way, salt is going to be regulated. There won’t be any. Is that their right, to tell you what you can and can’t eat? She wouldn’t answer the question. If there is a right to privacy regarding abortion, I would certainly think the people arguing that point would say there’s a right to privacy when it comes to the food we consume and digest.
If our reproductive rights, or at least a woman’s, are totally off the record and private, then how can our digestive rights not have equal rights to our reproductive rights? Why is it written that our digestive rights must be subordinated to our reproductive rights? I can’t believe we’re even talking — yes, I can believe we’re talking about it because this is where we are in 2010, run by a bunch of Nanny State Marxists. If Elena Kagan believes that there are privacy rights allowing a woman and her doctor to kill a human baby just before it’s born without government interference then I would think using the same logic must assume she believes the government can’t stop me from eating an unborn chicken, which is an egg, for those of you in Rio Linda. After all, they have all that cholesterol. I listen to this, it sounds to me like Elena Kagan may have a bigger problem with me eating an egg than with a woman killing her child. It’s scary. We can all agree the government has no place in the bedroom, but all of a sudden now they have a place in the dining room? They have a place in the kitchen? And she will not pooh-pooh it? Whatever happened to hands off our bodies? And we have this answer here, ‘I think the courts would be wrong to strike down laws that they think are senseless just because they’re senseless.’ Meaning, a senseless law could be constitutional. Some people might think the government dictating what we can and can’t eat is senseless. But that doesn’t mean it’s unconstitutional.
John King’s USA on CNN introduced a segment about Elena Kagan thus.
KING: Rush Limbaugh says he knows what’s behind this nomination.
RUSH ARCHIVE: The reason there’s nobody criticizing Kagan on the left is ’cause she’s exactly what they want, an Obama rubber stamp. She is a full-fledged, far-left ideologue who believes the Constitution’s unjust and immoral, needs to be rewritten, and she’s going to be happy to do it. But she can’t get confirmed if she admits that.
KING: He’s right, she can’t get confirmed if she admits that. Nobody could.
RUSH: Well, but the problem is that’s what she does believe. They went and asked Ed Rollins about that. ‘What do you think, Ed? She thinks the Constitution’s unjust and immoral?’
ROLLINS: No, she’s not. But I think the bottom line is everybody knows she’s appointed by the president, she’s pretty liberal, and I think she’ll fit right in the seat that she’s — was the Douglas and then the Stevens seat. It’s been the liberal seat for a long time.
RUSH: (imitating Rollins) ‘She doesn’t think the Constitution is immoral and unjust, but she’s a liberal,’ blah, blah, blah. What’s the difference? Liberals look at the Constitution and they have great resentment for it. It’s a charter of negative liberties after all, it tells them what they can’t do to us, it tells them they can’t dictate what we can and can’t eat, but that’s going to change if they get a majority control of the court.
RUSH: Arlen Specter today in Washington, the Senate Judiciary Committee confirmation hearings on Elena Kagan. Specter, not happy with Kagan’s non-answers, says he hopes he can find a place short of voting ‘no.’
SPECTER: You have followed the pattern which has been in vogue since Bork, and you quoted me in your law review article that someday the Senate would stand up on its hind legs. It would be my hope that we could find some place between voting ‘no’ and having some sort of substitute answers, but I don’t know it will be useful to pursue these questions any further. I think we are searching for a way how senators can succeed in getting substantive answers, as you advocated in the Chicago Law Review, short of voting ‘no.’
RUSH: Senator Specter, now Democrat from Pennsylvania, saying, we’re not getting any answers from you. I got no reason to vote ‘yes’ here. Maybe, Senator Specter, you should try waterboarding. We know that waterboarding works. It makes people talk.
RUSH: This is John King on his show on CNN last night talking about my assessment of Elena Kagan, Supreme Court nominee of ‘Barack Hussein Obama! Mmm! Mmm! Mmm!
(replaying of sound bite)
RUSH: Exactly right. That doesn’t disqualify what I said. They’re laughing. ‘Nobody could!’ There’s very few people that would admit it. There are very few people that would be nominated for the court, Mr. King, that hold the view she does. She’s one of them. That’s why you’re getting worse than an empty suit. I mean for crying out loud, when Arlen Specter says, ‘My gosh, I can’t get anything substantive out of you.’ Hey, Mr. King, for tonight’s show (Did you miss it?) last hour I said, ‘Maybe the Senate should resort to waterboarding to get answers out of her because we know that does make people talk. See: Khalid Sheikh Mohammed.’ Now, there was another guest on King’s show last night, Cornell Belcher, a Democrat strategist whom I have never heard of. And John King said, ‘What about Limbaugh, Kagan, and all this Constitution unjust and immoral stuff?’
BELCHER: Look, that’s crazy babble. But, eh, you know, and it — it’s crazy babble by a crazy guy. She’s a remarkably well-qualified woman. She’s going to be a great justice.
KING: Eh, uh, t-to the point of why he’s doing that. Obviously we’re in a midterm election year. I — I think the tone this year is a little sharper than it was in So-to-mayor a year ago, if only for the reason, uh, that’s an odd-numbered year, this is an even-number year. Is that it there? That’s a base issue?
BELCHER: Well, I would argue that it is. I mean, part of that sort of ‘energizing the base’ that my friend here always likes to talk about, the energizing their base — and their base does have more enthusiasm. But you keep throwing them red meat like this. I mean, you keep throwing ’em sort of red meat. I mean, ‘She’s going to (stammering). They’re gonna take away their in… They’re going to take away your guns.’ They’re going to, you know, do all this crazy stuff.
RUSH: Meanwhile, she will not deny that the Constitution gives her the right to tell people what they can and can’t eat! Meanwhile, she won’t confirm that she wrote a memo that is in her handwriting. Mr. Belcher, I am not a political consultant. I’m not throwing ‘red meat’ to anybody, I don’t have a ‘base,’ and I’m not working with the Republican Party. Try as you people might to make me out to be the leader of the Republican Party, I’m not. I may be de facto, but I am not because I seek it, and I don’t coordinate anything. I don’t have a base. I’m not throwing red meat at people. I tell people what I think. Political consultant? I couldn’t do it. I’m too honest. Let’s go to more of Kagan. This is, let’s see — da-da-da-da-da-da-da-da-da — Charles Grassley. ‘Should judges ever look to foreign law for a, quote, unquote, ‘good idea’? Should they get inspiration for their decisions from foreign law?’
KAGAN: I’m in favor of good ideas coming from wherever you can get them. Uhh, so, in that sense I think for a judge to read a law review article, or to read a book about legal issues, or to read the decision of a state court — even though there’s no binding effect of that state court — or to read the decision of a foreign court to the extent that you learn about how different people, um, might approach and have thought about approaching legal issues. But I don’t think that foreign law, uh, should have independent precedential weight in any but, um, a very, very narrow set of circumstances.
RUSH: Unbelievable. What did she say here? Oh, yeah, I gotta look to foreign law! Of course we gotta look to foreign law, absolutely. I’ll look to anywhere is a good law. If Alice in Wonderland has a good idea, judge, I’ll certainly consider it, Senator. Did you get this answer? I think anywhere. ‘Oh, yeah. If Al-Qaeda had a good idea it might be senseless in somebody’s view but it’s a good idea, we might want to look at it. I’m open to all ideas, Senator.’ Who is this? Do you people realize the depths of depravity to which this bunch is taking the American judicial system? Of all the things that they are doing, the assault on the rule of law and the populating of our judiciary with mindless theoretician ideologues who are hell-bent on rewriting the Constitution is just striking. Let’s see. Grassley said, ‘Well, if confirmed will you rely on or cite international foreign law when you decide cases?’
KAGAN: It depends. There are some cases in which the citation of foreign law or international law might be appropriate. We spoke earlier — I, I forget which of the senators — about the Hamdi opinion. The Hamdi opinion is one in which the question was how to interpret the authorization for the use of military force.
KAGAN: And Justice O’Connor in that case, one of the ways that she interpreted that statute was by asking about the Law of War and what the Law of War usually provides, what authorities the Law of War provides.
RUSH: (yawns) I don’t care.
KAGAN: And that’s a circumstance in which, in order to interpret a statute giving the president various wartime powers —
RUSH: Okay. I’m looking for the next bite.
KAGAN: — the court thought it appropriate to look to —
RUSH: This is so baseless.
KAGAN: — what the Law of War generally provided.
RUSH: This is a first grade, Dick and Jane reader. Why the hell am I playing this stuff anyway?