Well, no real surprise here: Supreme Court nominee Elena Kagan thinks that the Congress ought to make laws. As reported by the New York Times, Kagan, currently Solicitor General, told the Senate Judiciary Committee that Congress had a duty to pass reasonable and constitutional laws and shouldn’t rely on the Supreme Court to “strike down laws that they think are senseless, just because they’re senseless.” Her comments came in response to a question by Oklahoma Republican Tom Coburn who asked if the Congress could enact a law requiring Americans “to eat three vegetables and three fruits every day.” As the Times notes, Coburn’s question “was, of course, a transparent proxy for the recent health care legislation, and Ms. Kagan knew that.”

However, as James Oliphant writes, “[t]o Kagan, at first blush, the question must have seemed absurd, maybe even a joke. ‘It sounds like a dumb law,’ she replied off the cuff. Then, realizing Coburn was serious, she segued into sort of the windy, contextual, cautious analysis that she has employed to answer most of the questions asked of her over the last two days. But she had fallen into Coburn’s trap by answering more like the law professor she is than by simply responding like most people would. She never just said: ‘Of course it can’t.’”

Of course, as better explained by scholars such as William Popkin, a court does legislate when it undertakes discretionary judging — that is, when it undertakes, as it must, the task of fitting statutes into “their past and future.” And this “modest competence” aids, rather than retards, “good government.” Instead of offering insipid answers, why can’t Kagan, the former dean of Harvard Law School, give an honest answer that accounts for this? Especially when she herself decried the confirmation kabuki dance?