Elena Kagan's Murky Bottom

In "Kagan is Coming" (WORLDmag.com), I bring together observations by David Brooks at the New York Times, James Copland at City Journal, and Mark Steyn with his Canadian perspective, to show how Elena Kagan could be a shoe-in, but might give Senators pause for thought, or may even emerge as a scary prospect.

The scariness lies in her view of free speech which she sees as a right that stands in need of "balancing." Certainly the freedom to speak whatever you want, whenever you want, and to whomever you want has never found defenders except among certain libertarian radicals. All speech is subject to reasonable limitations concerning time, place, and manner. The law cannot permit shouting fire in a crowded theatre or passing secrets to enemies during wartime. We have laws against libel and slander, and "fightin' words" are in a special class. At one time, profanity and blasphemy were highly regulated, and perhaps still should be. But even today, there are words you cannot say on the public airwaves.

But Kagan would go beyond those limits and "balance" speech against considerations of its "societal costs." In other words, she would limit speech in political ways, i.e., in precisely the ways that the first amendment is designed to protect against.

Mark Tapscott found this quote through David L. Hudson of the First Amendment Center. It is from a government brief she authored for United States v. Stevens, a case concerning a law that banned depictions of animal cruelty.

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.

Of course, any decent and sensible person will immediately sympathize with her point, but no republican patriot would agree with the way she words it. It is the politically obnoxious speech that needs legal protection, speech that will always find condemners who cite its "societal costs." But she goes there. And if the Senate confirms her nomination to the Supreme Court, insofar as her influence among her eight colleagues prevails, she will take the rest of us there as well.

Her handling of the military recruiters at the Harvard Law School when she was dean of that powerful institution is equally scary. Rich Lowry takes us through each stage of the development and Kagan's role that was anti-military and careless of the law she would be charged with interpreting and upholding ("A Shameful Record," New York Post, May 18, 2010).

She blasted "Don't Ask, Don't Tell" as "a moral injustice of the first order." That would presumably put it on par with the worst crimes in world history. When the 3rd Circuit Court of Appeals said in 2004 that the Solomon Amendment was "reasonably likely" to be unconstitutional, Kagan immediately used it as an excuse to reinstate strictures on military recruiters -- never mind that Harvard isn't in the 3rd Circuit, or that the court blocked its own ruling from taking effect. When the military again threatened to cut off Harvard's funds, Kagan backed off, an implicit admission that she was on shaky ground. In 2006, the Supreme Court upheld the Solomon Amendment and rejected an argument against it in an amicus brief from Kagan by a stinging 8-0 margin.

Far from scrupulously following the letter of the law, as her supporters claim, "she acted in defiance of it until called on it by the military."

The New York Times observed in an editorial, "Whether by ambitious design or by habit of mind, Ms. Kagan has spent decades carefully husbanding her thoughts and shielding her philosophy from view." We cannot allow this. We have here two very disquieting insights into Elena Kagan's approach to the law. One suspects that we are far from reaching the bottom of the murky waters concealing her judicial philosophy and her thoughts on public affairs. Given that the business of the judicial branch is to "say what the law says," as Chief Justice John Marshall put it so long ago, it is essential that we discover and scrutinize what those views are in the course of her confirmation hearings, especially as she has no record as a judge. The law itself is at stake.