President Obama should withdraw Elena Kagan from consideration – UPDATED!
Posted by iusbvision on May 17, 2010
First of all let me say that Obama won an election so if he wants to nominate a liberal that is fine. With that said Elena Kagan is no liberal. Read on for details.
I just finished reading Elena Kagan’s senior thesis (Thanks Rightscoop for hosting). It is about the socialist and militant socialist movement in New York from 1900 – 1933. It is a typical example of undergraduate work with lots of quotations and adjectives and poor on critical thinking which I have witnessed from those indoctrinated by leftist academic time and time again during my years at college. Her thesis was for the history department, which I found ironic because she states that she is unable to explain the collapse of the socialist party and movement after WWI. Apparently she and some of the history faculty who helped her were unaware of what a disaster Woodrow Wilson was domestically and what a success Reaganites like Warren Harding and Calvin Coolidge were (we have talked about how this part of history has been largely scrubbed by the academic left). Kagan’s thesis is no disinterested exploration of history. It takes an advocacy stance for radical and militant socialism which is important to keep in mind because in 1981 this was the height of the Cold War and militant socialism was the avowed enemy of freedom. Such regimes caused the deaths of over 100 million people.
But a college thesis by itself is no reason to keep anyone from the bench. It is more of an indictment of just how radical and subversive leftist academia has been for decades.
Kagan is hostile to the Second Amendment which also places her out of the mainstream because overwhelming numbers of Republicans, Independents and Democrats support the individual right to bear arms as did the Founders. But while disturbing, this by itself is likely not reason that would keep anyone from the bench.
As Solicitor General she argued that at times it may be appropriate for the government to censor books and some other publications in support of the unconstitutional McCain-Feingold campaign finance law which illegally restricted political speech. A case the court ruled against her on:
In a scathing concurrence to the opinion, Chief Justice John Roberts blasted Kagan’s argument.
“The government urges us in this case to uphold a direct prohibition on political speech. It asks us to embrace a theory of the First Amendment that would allow censorship not only of television and radio broadcasts, but of pamphlets, posters, the Internet, and virtually any other medium that corporations and unions might find useful in expressing their views on matters of public concern,” he wrote.
“Its theory, if accepted, would empower the government to prohibit newspapers from running editorials or opinion pieces supporting or opposing candidates for office, so long as the newspapers were owned by corporations — as the major ones are. First Amendment rights could be confined to individuals, subverting the vibrant public discourse that is at the foundation of our democracy.”
Justice Anthony Kennedy wrote in the majority opinion that Kagan was defending a law that represents an illegitimate attempt to use “censorship to control thought.”
He declared, “This is unlawful. The First Amendment confirms the freedom to think for ourselves.”
A government brief signed by Kagan in United States v Stevens: “Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs.”
While disturbing that any Solicitor General would dare make such an argument even while representing the views of President Obama, she was still representing someone else. So by itself this is not enough to make the case that she should not serve as a justice.
The Military Recruitment Scandal
As the dean of Harvard Law School Kagan argued that the First Amendment allowed her to ban military recruiters from access to the university career center (or any other university resources) because she did not like the “don’t ask don’t tell” policy of Bill Clinton and the Congress; she argued that the First Amendment gave her the right not only to censor the recruiters but to also take the federal money for allowing them on campus. The left is saying that recruiters were still allowed on campus and that political opponents are making this up because “recruiters were still on campus” and defacto were not “banned” The truth is that recruiters were forbidden from working with any aspect of the university administration to talk with students. A military veterans student club on campus provided access to recruiters. A student club has the right to freedom of expressive association and thus Kagan was powerless to stop the student club from providing this service.
Even Politifact got this story right:
Congress threatened to yank federal funding for schools that banned recruiters through a measure known as the Solomon Amendment, named for Rep. Gerald Solomon, R-N.Y., and first passed in 1996. Schools and recruiters tried to sort out their differences in the intervening years, with some schools providing partial access. But eventually the issue came before the Supreme Court in 2004 in a case known as Rumsfeld vs. Forum for Academic and Institutional Rights, known as FAIR. FAIR was an association of law schools that opposed the Solomon Amendment.
In her role as a professor of law at Havard, Kagan signed onto an amicus brief (sometimes known as a “friend of the court” brief) filed by 40 Harvard professors that argued that the federal government should not be able to withhold funding if the schools applied the same policies to all recruiters. Harvard, for example, required all recruiters to sign forms indicating they would not discriminate against applicants based on sexual orientation. The withholding of funds interfered with the schools’ freedom of expression to oppose what they felt were discriminatory policies. [Ergo the First Amendment gives her the right to censor others who she feels “discriminate” -Editor]
The Supreme Court, however, disagreed in an 8-0 ruling on March 6, 2006. The majority opinion, written by Chief Justice John Roberts, ruled against FAIR and, in doing so, rejected the claims of Kagan and the other law professors that the school had the right to enforce non-discrimination policies against the military. “Under the statute, military recruiters must be given the same access as recruiters who comply with the policy,” the opinion said.
The court also rejected arguments that claimed that the law schools’ treatment of military recruiters could be considered expression under the First Amendment. If the action itself were purely expressive, the court reasoned, the schools would not have to issue statements explaining their actions. The court compared the situation to someone who says he won’t pay his income taxes because he disapproves of the Internal Revenue Service. The disapproval is protected speech, but the non-payment of taxes is not.
The opinion was supported by Justices John Paul Stevens, Antonin Scalia, Anthony Kennedy, David Souter, Clarence Thomas, Ruth Bader Ginsburg, and Stephen Breyer joining Roberts. Justice Samuel Alito did not participate because he had not yet been seated to the court when oral arguments were made.
This is likely enough to keep Kagan from serious consideration; her view is clear, the First Amendment gives her the right to censor others and that Congress does not have the power to raise an Army and a Navy if she objects. The court shot her down unanimously. Kagan’s view on this is so far out of the mainstream that it is the kind of “legal reasoning” that one expects to see from the court of a banana republic.
However, Kagan did express her First Amendment views in a Chicago Law Review article that is chilling.
Kagan Argued for Government ‘Redistribution of Speech’
Kagan expressed that idea in her 1996 article in the University of Chicago Law Review entitled, “Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine.”
“The answer to this question involves viewing the Buckley principle [that government cannot balance between competing speakers] as an evidentiary tool designed to aid in the search for improper motive,” Kagan wrote. “The Buckley principle emerges not from the view that redistribution of speech opportunities is itself an illegitimate end, but from the view that governmental actions justified as redistributive devices often (though not always) stem partly from hostility or sympathy toward ideas or, even more commonly, from self-interest.”
Kagan notes, however, that such “redistribution of speech” is not “itself an illegitimate end,” but that government may not restrict it to protect incumbent politicians or because it dislikes a particular speaker or a particular message.
She argued that government can restrict speech if it believes that speech might cause harm, either directly or by inciting others to do harm.
Kagan also argued that the Supreme Court should not be concerned with maintaining or protecting any marketplace of ideas because it is impossible for the court to determine what constitutes an ideal marketplace, contending that other types of laws, such as property laws, can also affect the structure of the marketplace of ideas and that a restriction on speech may “un-skew” the market, rather than tilt it unfavorably.
“If there is an ‘overabundance’ of an idea in the absence of direct governmental action — which there well might be when compared with some ideal state of public debate — then action disfavoring that idea might ‘un-skew,’ rather than skew, public discourse,” Kagan wrote.
Instead, the Supreme Court should focus on whether a speaker’s message is harming the public, argued Kagan in her article.
Stunning. This stands directly in the face of the obvious meaning of the First Amendment. Legal scholars have used the example of the marketplace of ideas is what allows and encourages freedom of conscience, expression, innovation and ideas. Kagan stands against the entire idea because the government cannot fully redistribute speech and power to enforce its version of equality on everyone ‘s speech. Do we want a government that restricts and promotes speech to ensure some bureaucrats view of “speech equality” which can mean anything? Does anyone want a government with that kind of power?
Actually there are people who want the government to have that kind of power as Kagan’s stated view is typical among communists, totalitarians and far left academics; for those of you who do not know legal action and the threat of legal action goes on constantly against public universities for illegally censoring/punishing constitutionally protected speech. Most universities have speech codes that are unconstitutional on their face, including IUSB.
This stated view of Kagan alone is more than enough to demand that the president pull Elana Kagan from consideration for the court.
There is one other aspect of this nomination that I find disturbing. The self proclaimed most transparent administration in history is keeping the press away from Kagan’s family and friends which is highly unusual. Former CBS News man Bernie Goldberg and Megyn Kelly report and ask what it is that the administration is trying to hide:
I was able to at least in part get down to the answer to one of the brothers. Elena Kagan’s brother is mentioned in Elena Kagan’s senior thesis on page 3. The thesis is about the socialist and militant socialist movement in New York from 1900-1933. “I would like to thank my brother Marc, whose involvement in radical causes led me to explore the history of American radicalism in the hope of clarifying my own political ideas.” As we stated above Kagan’s thesis is no disinterested exploration of history. It takes an advocacy stance for radical and militant socialism which is important to keep in mind because in 1981 this was the height of the Cold War. That brother is teaching students and the White House wanted to make sure that no one sat in on his class. It is no surprise as to why. Elena Kagan has two bothers Irving & Marc and both are academics, are their views the same? I can’t find much info on the net about her family other than that. Tips are welcome.
UPDATE – While Obama insisted that Bush give more access to Harriet Miers, its clams shut with Kagan.
Senator Barack Obama said the following about the Harriet Miers nomination to the Supreme Court according to Greg Sargent in The Plum Line (Washington Post) in 2005:
Harriet Miers has had a distinguished career as a lawyer, but since her experience does not include serving as a judge, we have yet to know her views on many of the critical constitutional issues facing our country today. In the coming weeks, we’ll need as much information and forthright testimony from Ms. Miers as possible so that the U.S. Senate can make an educated and informed decision on her nomination to the Supreme Court.
To comply with the Obama Standard, the Senate should be provided with information, through testimony and documents, to allow the Senate to properly assess Kagan’s views on “many of the critical constitutional issues facing our country today.” Elena Kagan wrote in 1995 that:
When the Senate ceases to engage nominees in a meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce, and the Senate becomes incapable of either properly evaluating nominees or appropriately educating the public.
Both the Obama and Kagan Standard should be followed by the Senate during the confirmation process of Solicitor General Elena Kagan to the high court.
Elana Kagan argues for government book banning in front of Supreme Court. Elite media silent. Palin political enemy makes false book banning charges and elite media continues to say it after the story debunked.