Can Kagan Be Trusted to Defend the Constitution?

While Elena Kagen may indeed be no worse than any other Obama nominee, that is becoming increasingly unclear. Elections have consequences and Presidents should be given wide latitude on nominees. However, there is a major issue for the Senate to consider and one which, with the continuing filling in of the Kagan belief system jigsaw puzzle, should possibly lead Republicans to filibuster her. That issue is whether Kagan is likely to be honest when she swears to the oath of office which must be taken by all federal officials in support of the Constitution:

“I, _________, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”

In her limited litigation experience and in her so-far-discovered writings, Elena Kagan is batting .000 when it comes to protecting and defending the Constitution. And while her record is thin, it is dangerously consistent.

In United States v Stevens, which Kagan argued and lost on behalf of a law passed by Congress which criminalized “the commercial creation, sale, or possession of certain depictions of animal cruelty," she suggested in a written brief that "Whether a given category of speech enjoys 1st Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs."

In his 8-1 majority opinion, Chief Justice Roberts reaction to Kagan’s assertion was as fierce a statement as I’ve seen from his pen:

“As a free-floating test for 1st Amendment coverage, that sentence is startling and dangerous. The 1st 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 1st 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. The Constitution is not a document ‘prescribing limits, and declaring that those limits may be passed at pleasure.’"

Does anybody wonder who Kagan believes would be the arbiter of such a test? The federal bureaucracy, no doubt. But the details of the test aren’t as important as Kagan’s assault on Americans’ most fundamental right—freedom of speech.

Less than a year earlier, in Citizens United v Federal Election Commission, Kagan and her office argued that the "McCain-Feingold" Bipartisan Campaign Reform Act would theoretically allow the government to ban electioneering communication or publication 30 or 60 days before an election.

As in Stevens, Kagan ran into the buzzsaw of John Roberts who, in a concurring opinion in the 5-4 decision overturning some of McCain-Feingold’s key provisions, gave Kagan this slap-down:

“The government urges us in this case to uphold a direct prohibition on political speech. It asks us to embrace a theory of the 1st 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. 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. 1st Amendment rights could be confined to individuals, subverting the vibrant public discourse that is at the foundation of our democracy.

“The court properly rejects that theory, and I join its opinion in full. The 1st Amendment protects more than just the individual on a soapbox and the lonely pamphleteer.”

Roberts’ reference to pamphlets was not accidental: During oral argument in September, 2009, there was this telling back and forth between the chief justice and the out-of-her-depth Kagan, following Kagan’s response to Justice Scalia about banning books (which Kagan said the government wouldn’t do):

Chief Justice Roberts: But…we don’t put our 1st Amendment rights in the hands of FEC bureaucrats; and if you say that you are not going to apply it to a book, what about a pamphlet?

Solicitor General Kagan: I think a—a pamphlet would be different. A pamphlet is pretty classic electioneering, so there is no attempt to say that [the law] only applies to video and not to print.

Got that? Kagan argued that McCain-Feingold means the government could ban the next Common Sense, the next Thomas Paine or Daniel DeFoe, because they might have the temerity to care and opine about who gets elected to political power in the United States. And we’re just taking her word for it that, had she not lost that case as well, government wouldn’t determine that there’s basically no difference between a book and a pamphlet, so why draw the line at banning pamphlets?

Kagan’s hostility toward the plain meaning of the 1st Amendment is nothing new. In a 1996 paper (PDF) for the University of Chicago Law Review (she was a professor at the University of Chicago at the same time that Barack Obama was a lecturer there), Kagan suggested that the government’s motives in restricting speech should be important factors in whether those restrictions are upheld by a court. She wonders aloud, in eye-opening Socialist language "what view of the 1st Amendment accounts for the court’s refusal to allow, by means of restrictions, the redistribution of expression?"

You read that right; she said "redistribution of expression."

She continues: "The question remains, however, why the court should treat as especially suspicious content-neutral regulations of speech—such as the regulations in Buckley—that are justified in terms of achieving diversity." You can already hear her ruling in a sure-to-come challenge to the re-imposition of the Fairness Doctrine meant to muzzle talk-radio conservatives in the guise of increasing "diversity of opinion".

Similar to her argument in Stevens which implies a government arbiter of speech, Kagan makes this remarkable statement in her paper: "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 ‘unskew,’ rather than skew, public discourse."

Perhaps it’s no surprise that one of Kagan’s sources for her paper is Barack Obama’s current "regulatory czar" Cass Sunstein from a 1993 book he wrote called Democracy and the Problem of Free Speech. Is it an accident that now that he is in power, Barack Obama is criticizing the wide and rapid availability of information which technology is bringing the people? Obama and Kagan both fear the blowback against tyrannical and gigantic government which Thomas Jefferson predicted in a letter in 1789: "Whenever things get so far wrong as to attract their notice, the people, if well informed, may be relied on to set them to rights."

If our prerogative to be well-informed were to come before a Supreme Court on which Elena Kagan sat, the chance that she would uphold her oath to the Constitution is the same .000 she’s shown in all her prior interactions with our republic’s most fundamental right. Kagan’s consistent antipathy toward the plain meaning and intent of the First Amendment is becoming increasingly disqualifying as each new piece of the Kagan jigsaw puzzle makes the picture disturbingly clear.