Kagan's 1st Amendment Problem

As the "battle" over Elena Kagan begins, I can't help but think how close we are to having a Supreme Court which will begin to overturn portions of the Bill of Rights, should she be confirmed.  Most likely she will be confirmed, as once a nominee reaches this step in the process, the committee is, for all practical purposes, a rubber stamp.

  Most of the committee members are only performing for the cameras, and the other committee members, trying to impress each other with their cleverness, asking completely asinine questions which have little to do about gleaning any information about the nominee before them. Al Franken comes to mind.  And, there is plenty to try to find out about Elena Kagan's qualifications in being appointed to the Supreme Court.  Though there is very little information which she has published, which might give us an idea as to whether she would be a jurist worthy of sitting on the Court,  there are some notes and quotes which should be vigorously pursued under questioning.
One of the people that she most admires is the late Justice Thurgood Marshall.  Marshall is on record as saying, "You do what you think is right, and let the law catch up".  This is the problem that we see in the courts now.  It is a judges job, nee duty, to look at each case before him or her, and to judge it based on it's merits under the law.  In this case, the Constitution of the United States.  The fact that there are only nine judges on SCOTUS, is is imperative that the individuals that are appointed are all looking at only the Constitution in determining outcome.
Kagan on The 1st Amendment:  “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.”  This is astounding.  Depending on the category of speech, we determine whether the speech is protected.  To go deeper, in a 1993 University of Chicago Law review article, she states, “I take it as a given that we live in a society marred by racial and gender inequality, that certain forms of speech perpetuate and promote this inequality, and that the uncoerced disappearance of such speech would be cause for great elation.” She is saying that certain types of speech essentially are unfair and their elimination would be celebrated.  Who gets to pick?  Who is so wise?   But Brian, this is from 1993!  You can't hold her to something that she said 17 years ago!  Then how about September 2009, when she argued in Citizens United v. Federal Election Commission, that Congress has a Constitutional right to ban companies from printing political pamphlets, or other political speech, supporting one candidate over another?  The Court ruled 5-4 that Congress does not have that authority. In the majority opinion, Justice Kennedy stated that Kagan was supporting a law that uses "censorship to control thought" and said “This is unlawful. The First Amendment confirms the freedom to think for ourselves.”  This alone should disqualify Elena Kagan.  Her judicial philosophy regarding free speech is that governments has the right to regulate or censor political speech which it deems damaging, misleading, or inappropriate.  Having the government determine this will ensure that you are no longer able to freely speak your mind.  Keep in mind that Congress just passed a bill called the DISCLOSE Act, which in essence puts back into law that which the Supreme Court recently struck down.  This law will be challenged at the Supreme Court again, only this time (if she is confirmed), Elena Kagan will be sitting on the Court.
Now that is frightening.

1 comment:

  1. I just finished hearing excerpts from Elena Kagans confirmation hearing and to say that I am appalled is an understatement. Throughout her responses to questions she displayed two things. First unlike Mark Levin I believe it is a complete and total disregard for the Constitution and not an ignorance of it. Secondly she displays a total and absolute lack of knowledge of not only jurisprudence but the correct application of it thereof. To say that she is not qualified does an injustice to all of the unqualified people of the world. I firmly believe that she is so absorbed in liberal ideology that she can not make a rational constitutional decision if some one were to give it to her. Granted my closest legal qualification is being the son of a lawyer (an ex attorney general), but not only have I studied the constitution it is the core of how I live my life and why I served in the military to defend it until I had to retire. All of you my fellow Americans need to contact your Senators amd congressmen and ladies to push, if for nothing else, that no Republican senator on the committee cast a vote for Mrs. Kagan so that we can filibuster this atrocity and take one more step towards saving our country.