This mixes like oil and water: Kagan and the 1st Amendment

I will be posting two feeds here on Elena Kagan. First one is from the Patriot Post and the second one from Investor's Business Daily. Links will be at the bottom of the each feed. There is trouble with this choice for the SCOTUS opening and if confirmed, it will not bode well for those who cherish freedom and liberty

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Bounds of Silence: Obama's Court Pick Looks Wobbly on Freedom of Speech
By Jacob Sullum

Patriot Post; Last month, New York Times legal writer Adam Liptak said two recent Supreme Court cases "suggest that the Roberts Court is prepared to adopt a robustly libertarian view of the constitutional protection of free speech." Elena Kagan, President Obama's nominee to replace retiring Justice John Paul Stevens, was on the losing side in both.

As solicitor general, of course, Kagan has an obligation to defend federal laws against constitutional challenges. But her pro-censorship positions went beyond the call of duty. Together with some of her academic writings, her arguments in these cases provide grounds to worry that she will be even less inclined than Stevens, who has a mixed First Amendment record, to support freedom of speech.

Defending a 1999 federal ban on depictions of animal cruelty, Kagan boldly asked the Supreme Court to recognize a new category of speech that, along with such historical exceptions as defamation, incitement and obscenity, is entirely outside the scope of the First Amendment. "Whether a given category of speech enjoys First Amendment protection," she wrote, "depends upon a categorical balancing of the value of the speech against its societal costs."

Writing for the 8-to-1 majority, Chief Justice John Roberts called this claim "startling and dangerous," adding: "The First Amendment's guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it."

Defending federal restrictions on political speech by corporations, Kagan tried to paper over an equally startling claim by Deputy Solicitor General Malcolm Stewart, who had told the Court that the Federal Election Commission could ban books in the name of preventing the appearance of corruption.

"The government's answer has changed," she said during a second round of oral arguments in September. But it later became clear that she agreed with Stewart, athough she tried to reassure the Court by emphasizing that so far the FEC had not tried to ban any books.

There is evidence in Kagan's academic articles that her overzealous defenses of federal censorship were more than a function of her job. In a 1993 essay published by The University of Chicago Law Review, for instance, she suggested how supporters of bans on pornography and "hate speech" could pursue their goals despite that pesky First Amendment. Her proposals included bans on "works that are both sexually explicit and sexually violent," a redefinition of obscenity to focus on material deemed harmful to women (which would then be unprotected -- an idea that anticipated Kagan's argument in the animal cruelty case), "hate crime" laws that boost penalties for existing offenses when they're motivated by bigotry and laws "prohibiting carefully defined kinds of harassment, threats, or intimidation."

More fundamentally, Kagan's understanding of First Amendment law, described most fully in a 1996 University of Chicago Law Review article, suggests a tolerance for censorship when it is appropriately disguised by euphemisms. In Kagan's view, the main goal of First Amendment doctrine is not to maximize freedom or promote robust debate, but to ferret out impermissible motives for speech restrictions.

While the government may constitutionally restrict speech based on "neutrally conceived harms," Kagan says, it may not restrict speech based on "hostility toward ideas." But as she herself more or less acknowledges, this distinction ultimately collapses because people are hostile to ideas they consider harmful.

Whether the issue is pornography, bigotry, dogfight videos or political ads sponsored by corporations, would-be censors always claim the speech they want to outlaw causes harm. Without a theory about what sort of harm (if any) can justify speech restrictions, we are left with the "ad hoc balancing of relative social costs and benefits" that the First Amendment was intended to prevent.

http://patriotpost.us/opinion/jacob-sullum/2010/05/12/bounds-of-silence-obamas-court-pick-looks-wobbly-on-freedom-of-speech/


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Kagan's Hidden, But Obvious, Agenda
Investor's Business daily

IBD; Supreme Court: President Obama's high court pick has practically no paper trail, yet her left-leaning orientation is clear. The president knows what he's getting in his old friend Elena Kagan; America doesn't — yet.

'Our solicitor general, and my friend: Elena Kagan." That was how Obama introduced his replacement for the most aggressively liberal member of today's court, John Paul Stevens, appointed by Republican Gerald Ford 35 years ago.

"My friend" speaks volumes. Kagan has never been a judge, so we have no written opinions or dissents upon which the Senate — or the American people — can judge her suitability to serve as one of the nine most powerful judges in the country.

But the president's acquaintance with her dates back to the early 1990s when both taught at the University of Chicago Law School. There, the two no doubt attended many of the law faculty's famous thrice-weekly Quadrangle Club roundtable lunches.

As the Chicago Sun-Times notes, that traditional gathering has "one ground rule: The conversation has to be about law or politics." And in taking part in them, Kagan "was a very lively and opinionated person," Chicago Provost Geoffrey Stone tells the newspaper.

So Obama knows a great deal — maybe everything — about his nominee's judicial views. We, on the other hand, know little beyond the telling fact that she's a conspicuously popular choice when a liberal Democrat needs a lawyer to do some politicking.

Before Obama made her his solicitor general, Kagan was Bill Clinton's associate White House counsel and served on his Domestic Policy Council. Clinton nominated her to the D.C. Circuit near the end of his second term, but the then-Republican majority in the Senate refused to act on that and other nominations.

Moreover, it was Lawrence Summers, Clinton-Obama economic bigwig and then-Harvard president, who in 2003 was responsible for Kagan becoming dean of Harvard Law School — another political appointment. Kagan clerked for Supreme Court Justice Thurgood Marshall and for Abner Mikva, the Carter-appointed D.C. Circuit judge, a former Democratic Chicago congressman, a Clinton White House counsel and an Obama legal adviser.

It's noteworthy that after Kagan's ill-fated Clinton court nomination, Chicago Law wouldn't let her come back to its faculty, gleaning that she'd just be waiting for her next plum political job.

Even the New York Times, which would undoubtedly be happy with a Justice Kagan, is grousing that "whether by ambitious design or by habit of mind, Ms. Kagan has spent decades carefully husbanding her thoughts and shielding her philosophy from view."

Put it all together and this looks like an ambitious radical stealthily, and for many years, grooming herself for the pinnacle of judicial power. But is this nonjudge, with precious little trial experience even as a lawyer, even qualified?

As the Hot Air blog noted, her appearance before the justices representing the government on the losing side of the recent Citizens United case was an embarrassment. For falsely claiming that for over a century the high court endorsed expenditure limits on political speech by corporations, Kagan was immediately scolded by Justices Scalia and Kennedy.

"We only disapprove of something when somebody asks us to," Scalia reminded Kagan. Kennedy complained that "it doesn't clarify the situation ... to suggest that for 100 years we would have allowed expenditure limitations. ... We've never allowed that."

And furthermore, why another New York City liberal who went to Princeton? Apparently the only difference between Kagan and the president's first nominee, Justice Sonia Sotomayor, is, as he said in announcing her, that Kagan is a fan of the Mets, not the Yankees.

Kagan's undergrad thesis at Princeton — one of the few writings we have by her — was on the history of socialism in New York City. Does that suggest someone in touch with most Americans?

Justices Alito, Ginsburg, Scalia and Sotomayor are all from the Big Apple or New Jersey. Justice Breyer comes from San Francisco, and Kennedy's hometown is the seat of government in California, Sacramento (having also worked in a San Francisco law firm). Only Chief Justice Roberts, from Indiana, and Justice Thomas, from Georgia, have any claim among Kagan's possible future colleagues as being in touch with "fly-over country."

With the Supreme Court likely to scrutinize the constitutionality of ObamaCare and other recent Washington power grabs, Elena Kagan is another liberal elitist sure to give her stamp of approval.

http://www.investors.com/NewsAndAnalysis/ArticlePrint.aspx?id=533720