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Considering Kagan

She’s weak on free speech, but doesn’t deserve her ‘Seinfeld moment’
By EDITORIAL  |  May 12, 2010


Elena Kagan, onetime dean of Harvard Law School and current US solicitor general, is a less than perfect candidate to sit on the Supreme Court.

Her ambiguous views on free speech when national security is at risk — she believes that it can be toyed with, modified, and compromised — are troubling, especially in the wake of the Bush-Cheney junta’s assault on civil liberties.

Protecting free-speech principle over political expediency is, after all, the ultimate job of the Supreme Court.

Although outgoing justice John Paul Stevens was considered conservative when he was appointed by Republican Gerald Ford in 1975, he has since gained bipartisan respect. His retirement is mourned not just because he is a moderate, but because, during a time of national crisis, he has proved to be a free-speech stalwart.

Though impossible to predict at this time, the same may not be said years from now of President Barack Obama’s Supreme Court nominees, whose judicial opinions implicate what critical progressive voices have long maintained: Obama is not strong enough on free-speech issues.

Justice Sonia Sotomayor, if not weak on the subject, could certainly be better. And Kagan certainly needs some help.

Be that as it may, it is disheartening to watch some on the left pretend that Kagan is more lacking than she really is.

The fact that Kagan is not a right-wing nut, as are Justices Antonin Scalia and Clarence Thomas, is indisputable.

That Kagan is not a corporation-favoring capitalist radical like Justices John Roberts and Samuel Alito is also clear.

That Kagan is smarter than the man wielding what is too often the court’s swing vote, Justice Anthony Kennedy, may well prove to be a good bet.

These may not be heartwarming consolations, but they are practical arguments in Kagan’s favor.

Whether Kagan’s nomination hearing before the Senate Judiciary Committee turns out to be anticlimactic, as was the case with Sotomayor, or rife with controversy, as with Thomas, remains to be seen.

But the fact that Kagan has no substantial paper trail on issues such as reproductive choice and gay marriage is far more troubling to the right than it is to left, despite pious blather to the contrary.

Republicans now harp endlessly about any nominee’s lack of judicial experience, not because being a judge imbues the robe-wearer with any divine powers, but because judges have records, and people with records that might be interpreted as favoring same-sex marriage or a woman’s right to choose are to be opposed by conservatives at any cost.

The fun-loving, right-wing free marketers who now edit Rupert Murdoch’s Wall Street Journal must suspect that Kagan might take a hard line when it comes to enforcing financial regulation and punishing corporate wrongdoers, too, since they published a 16-year-old photo of Kagan playing softball apparently intended to spark a discussion of whether the unmarried Kagan is gay. (Others carried the photo, but the Journal’s prestige propelled it onto cable and talk radio, and intensified discussion in the blogosphere.)

It seems so, well, liberal to say: “Who cares?” But that’s our position.

The long-divorced Sotomayor escaped such a whispering assault, probably because of the fact that she is Hispanic. That was more than enough to condemn her in the eyes of Rush Limbaugh’s audience (another name for the GOP base).

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