Obama Nominates Elena Kagan

President Barack Obama said he wanted to honor the legacy of Associate Justice John Paul Stevens with his nominee. If so, he has chosen to honor it in the breach with a nominee who is likely to dismantle a significant part of Stevens’ legacy. As with Justice Sonia Sotomayor, President Obama has decided to nominate someone who is demonstrably more conservative than the person she is replacing on some issues –potentially moving the Court to the right. I discussed on the nomination on this segment of Countdown.


For many liberals and civil libertarians, the Kagan nomination is a terrible act of betrayal after the President campaigned so heavily on the issue of the Supreme Court during his campaign. He is now replacing a liberal icon with someone who has testified that she does not believe in core protections for accused individuals in the war on terror. During her confirmation hearing Kagan testified that she believed that anyone suspected of helping finance Al Qaeda should be stripped of protections and held under indefinite detention without a trial — agreeing with the Bush Administration.

Stevens himself would occasionally vote with the conservative justices. Thus, it is possible that in those areas, like flag burning, Kagan could shift the vote back to the left. However, in two of the few areas where she has given her views (terrorism and free speech), Kagan states more conservative views.

In one interesting exchange, Kagan not only states that she believes we are “at war” but agrees that we should have considered ourselves at war since the 1990s:

GRAHAM: OK. Well, that would make him your boss, yes. But it seems to be — I think he’ll be a good boss. And I think you’d be very qualified for you job. [. . .] I asked him, “Do you think we’re at war”? And he said, “I don’t think there’s any question but that we’re at war.” I think, to be honest, I think our nation didn’t realize that we’re at war when, in fact, we were.

When I look back at the ’90s and the Tanzania, the embassy bombings, the bombing of the Cole, I think we, as a nation, should have realized that, at that point, we were at war. We should not have waited until September 11, 2001 to make that determination. Do you agree with that?

KAGAN: It’s easy to agree with my boss in that circumstance.

Graham also asks her the same question posed to Holder on whether people accused of financing terrorism (even when not captured on a traditional battlefield) should be stripped of their rights as enemy combatants. She answers in the affirmative:

GRAHAM: Well, I certainly do too. And I told him I thought what he was speaking of was the morale high ground. There’s a physical high ground in — in traditional war. But in this war, there’s the moral high ground and we have to maintain that moral high ground. I think at times we’ve lost it. We also have to remember they’re at — we’re at war.

Now, I asked him this question, “Now, when you talk about the physical battlefield, if our intelligence agency should capture someone in the Philippines that is suspected of financing al Qaida worldwide, would you consider that person part of the battlefield, even though we’re in the Philippines, if they were involved in al Qaida activity”? Holder said, the attorney general said, yes, I would. Do you agree with that?

KAGAN: I — I do.

Kagan’s writings (as little as there is) is highly problematic for liberals. Her writings on hate speech indicate a willingness to compromise on free speech issues. This is a similar view as expressed and criticized with Justice Sotomayor. Kagan’s 1996 article “Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine” in the University of Chicago Law Review should make any free speech advocate feel uncomfortable. In the article, Kagan suggests a broader basis for possible government regulation of speech and suggests that it should be the motives of the government (as opposed to the right to free speech) that should control the inquiry.

I argue, notwithstanding the Court’s protestations in O’Brien, that First Amendment law, as developed by the Supreme Court over the past several decades, has as its primary, though unstated, object the discovery of improper governmental motives. The doctrine comprises a series of tools to flush out illicit motives and to invalidate actions infected with them. Or, to put the point another way, the application of First Amendment law is best under- stood and most readily explained as a kind of motive-hunting.

On one level, the article is descriptive of the existing case law while offering a different way to viewing disparate rulings. However, she appears to support a broader scope for the regulation of hate speech and pornography.

In Regulation of Hate Speech and Pornography After R.A.V. in The University of Chicago (1993), Kagan explores different ways to regulate both pornography and hate speech. Kagan latches on to an approach that has long been controversial with free speech advocate — obscenity as a basis for limiting speech in areas like pornography:

The key point here is that regulation of obscenity may accomplish some, although not all, of the goals of the anti-pornography movement; and partly because of the long-established nature of the category, such regulation may give rise to fewer concerns of compromising First Amendment principles. Even for those who think that the obscenity doctrine is in some sense a second-best alternative, it represents the first-best hope of achieving certain objectives.

While Kagan refers to such suggestions as “trial balloons” it suggests a more fluid notion of first amendment protections:

The presumption against viewpoint discrimination, relied upon in Hudnut and further strengthened in R.A.V., has come to serve as the very keystone of First Amendment jurisprudence. This presumption, in my view, has real worth, in protecting against improperly motivated governmental action and against distorting effects on public discourse. And even if I assign it too great a value, the principle still will have to be taken into account by those who favor any regulation either of hate speech or of pornography. I have suggested in this Essay that the regulatory efforts that will achieve the most, given settled law, will be the efforts that may appear, at first glance, to promise the least. They will be directed at conduct, rather than speech. They will be efforts using viewpoint-neutral classifications. They will be efforts taking advantage of the long-established unprotected category of obscenity. Such efforts will not eradicate all pornography or all hate speech from our society, but they can achieve much worth achieving. They, and other new solutions, ought to be debated and tested in a continuing and multi-faceted effort to enhance the rights of minorities and women, while also respecting core principles of the First Amendment.

It will be interesting to see how this nuanced view of the first amendment plays out in the Snyder vs Phelps case involving the Westboro church, here.

Under the so-called Ginsburg rule, it is unlikely that we are going to get much substantive discussion of such views. Ironically, Kagan helped create that rule as a staff on Ginsburg’s nomination. She once called confirmation hearings “vapid and hollow” — a tradition that she may now embrace. As in earlier hearings, the Democrats are unlikely to call any witnesses on these liberal concerns and the Republicans are likely to support those more conservative views. The result is likely to be entirely vapid as Kagan suggested. Unlike Republicans who oppose GOP nominees if they are insufficiently conservative, Democratic senators have shown that they do not fight for such ideological strength in a nominee.

Even in the early commentary, it is distressing how the discussion immediately focused on the politics rather than the substance of the nomination. As with Sotomayor, the media appears unable to have a discussion about the substantive views of a nominee.

There is no question that Kagan has proven leadership ability, particularly as a consensus builder. She was able to lead Harvard Law School and end the liberal/conservative fighting on that faculty. However, she is not considered an intellectual leader in the teaching academy. She has actually written comparatively little as an academic. She has written only a few significant law review articles and a collection of shorter pieces. She appears to have received tenure at the University of Chicago based on a single article — something that would not be permitted at most top schools. What writing is there is not welcome by civil libertarians, which shows a lack of commitment to the very “fundamental rights” that President Obama referenced this morning in his nominating speech. When it comes to free speech and detainee rights, she (like the President) adopts a more legally relativistic approach.

While conservatives are likely to attack her on her banning military recruiters from campus, she has largely avoided controversial writings or positions in her career.

For liberals, the problem is her “pragmatic” approach to civil liberties and support for Bush policies. Stevens was the fifth vote in opposing such policies and Kagan could well flip that result. Few could have imagined that voting for Obama would have resulted in moving the Court to the right, but that appears to be case with the selection of Kagan.

Obama’s record on civil liberties has long been attributed to a rather cold calculus that liberals have no where to go and that he should continue to play to the middle and right of the political spectrum. I am not so certain. There is no evidence that Obama actually believes in some of the principles that Stevens fought for, particularly in the area of terrorism. What is clear is that he has selected someone who will honor that legacy by dismantling a significant part of it if her testimony before the Senate last year is any measure.

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