Supreme Court nominee Elena Kagan has danced around most of the questions she’s been asked. But there was one telling moment when her non-answer spoke volumes. 

 The non-answer came in response to a question by Senator Tom Coburn, who was trying to ferret out Kagan’s views on the limits of government power, specifically the commerce clause, which will be a key point if challenges to the overreaching healthcare reform legislation reach the Supreme Court:

“Do we [government] have the power to tell people what to eat every day?” Coburn asked.

Kagan, who developed federal policy and weighed in on legislation while in the Clinton White House, said the hypothetical law struck her as a “dumb law.” She added, “Courts would be wrong to strike down laws that are senseless just because they’re senseless.”

Not satisfied, Coburn came at the question again, reading from the Federalist No. 44 about limits on the powers of the federal government. He asked what restrictions there are on Congress’ authority to regulate economic activity under the Constitution’s commerce clause.

But Kagan declined to go much further than to cite the Court’s power to strike down laws that fall outside established parameters. “It is absolutely the case that the judiciary’s job, in Marbury v. Madison‘s famous phrase, to say what the law is,” Kagan said.

This is ominous. The nominee won’t say yes or no. This is a sure indication that, if the legal challenges by states reach a Supreme Court that includes a Justice Kagan, she will vote that the commerce clause can force a citizen to buy a product.  

 Many of us think that the healthcare legislation is “dumb.” But what we really want is to see it overturned.  Kagan signaled that she will find it constitutional. (Gary Marx in The Corner has a good item on this.)