Opinion: Could Scalia Get Confirmed by Today's Conservatives?

(June 28) -- Justice Antonin Scalia is supposed to be a right-wing icon. He's an outspoken defender of torture and once wrote that mere innocence is not a good enough reason to let an innocent man go free. His dissent in a landmark gay rights decision boiled down to little more than a paranoid rant against the "homosexual agenda."

Yet, if Supreme Court nominee Elena Kagan's opponents are to be believed, this same right-wing icon is far too liberal to sit on the Court.

In the next week, for example, Senate conservatives will complain loudly about Kagan's stance on guns. While in the Clinton White House, Kagan worked on a presidential memorandum preventing foreign gun manufacturers from importing military-grade firearms such as Uzis into the United States. And as a clerk to Justice Thurgood Marshall in 1987, she once recommended that the Court not agree to hear a case involving the Second Amendment.

Kagan's actions, however, are entirely consistent with Scalia's view of the Second Amendment.

In District of Columbia v. Heller, the recent Supreme Court decision striking down Washington, D.C.'s gun laws, Scalia wrote that it is perfectly constitutional to ban the sale of "weapons that are most useful in military service." Likewise, Scalia was a member of the Court in 1987, yet he indicated no dissent from the Court's decision not to hear the case Kagan recommended against their taking up.

Right-wing Sens. Jeff Sessions, R-Ala., and John Barrasso, R-Wyo., are also upset that Kagan likely doesn't share their view that the recently enacted health care bill violates "states' rights."

There's only one problem: neither, apparently, does Scalia.

In Gonzales v. Raich, Scalia wrote that Congress has sweeping authority to regulate "economic activity," and there is simply no question that comprehensive health care legislation fits this bill. Indeed, health reform's opponents conceded this fact with their perpetual braying that health reform would regulate "1/6th of the economy."

Of course, Justice Scalia never kicked military recruiters out of Harvard Law's campus -- but, then again, neither did Kagan. The entire controversy over Kagan's treatment of military recruiters boils down to a dispute over whether military recruiters wishing to visit Harvard should be processed by the law school's career services office or its veterans association. Every single minute that Kagan was dean of Harvard Law School, military recruiters were allowed to visit the campus.

Even the right's most obscure attacks on Kagan place them at odds with Justice Scalia.

While dean, Kagan once gave a speech praising former Israeli Supreme Court President Aharon Barak, the legendary jurist who established that Israeli courts may strike down an act of Israel's Knesset that conflicts with the human rights protected by Israel's "Basic Laws." Failed right-wing Supreme Court nominee Robert Bork said Barak "may be the worst judge on the planet," and that Kagan's speech praising Barak should "disqualif[y]" her from sitting on America's highest court.

Would Bork also say that Scalia is unqualified? In 2007, Scalia gave his own speech honoring Barak, where he touted his "profound respect for the man."

To be clear, Elena Kagan and Nino Scalia are hardly ideological twins. For the most part, Scalia supported President Bush's unconstitutional detention policies, while Kagan called an effort to bolster those policies "fundamentally lawless." Likewise, while Scalia has largely supported Chief Justice Roberts' crusade to immunize powerful corporations from campaign finance, consumer protection and civil rights laws, Kagan's record suggests that she will reliably vote to ensure that everyone has to follow the law.

But it is a testament to just how far off the deep end America's right has fallen that they are now demanding Supreme Court nominees who are well to the right of the Court's longest-serving and most strident conservative.

Thankfully, their demands will probably be ignored this time around and, unless some shockingly dark secret emerges in the next few weeks, Kagan is a shoe-in to be confirmed.

But the right's embrace of fringe constitutional theories that even Scalia views as lunacy warn of a high-stakes battle the next time a conservative president is naming judges. If the right is no longer satisfied with a justice like Scalia, one can only wonder what type of nominee would be acceptable.

Ian Millhiser is a constitutional attorney and a policy analyst with the Center for American Progress.


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