Why We Must Fight the Kagan Appointment
by Robert Tracinski
There is her imposition of a politically correct ban on military recruiters at Harvard Law School—a ban imposed after September 11, in wartime, apparently on the premise that if our military doesn't allow its recruits to proclaim their sexual preferences openly, then we're worse than the Taliban. There is her role, in the mid-1980s, in encouraging the publication—in a very prestigious law journal—of a weird racist rant written by an advocate of "Critical Legal Studies," a movement which holds that the law is inherently subjective. And then there is her role, as a legal official in the Clinton White House, in shielding a government employee who was leaking information to eco-terrorists.
But the thing that is most ominous—the thing that makes the Kagan nomination an utterly unacceptable assault on liberty—is her statement as White House Solicitor General that "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." The premise is that there is no limit on the power of the collective over the individual. The individual no longer has a non-negotiable right to speak. Instead, he has to petition for permission from the government, which will decide based on a pragmatic calculation of the costs and benefits to "society" of his particular "category" of speech.
As the Washington Examiner's Mark Tapscott observes, "had the justices accepted her assertion, it would have effectively repealed the First Amendment's protection of speech."
Add to this Kagan's role in arguing, on behalf of the Obama administration, in defense of the McCain-Feingold restrictions on political speech. In a moment that stunned the court, Deputy Solicitor General Malcolm Stewart asserted that the law's controls on speech paid for by corporations would also extend to banning books. Kagan later tried to distance herself from that statement—by saying it was OK to ban pamphlets. In his concurring opinion on the case, Chief Justice John Roberts specifically answered Kagan's argument.
"The Government urges us in this case to uphold a direct prohibition on political speech. It asks us to embrace a theory of the First 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. First Amendment rights could be confined to individuals, subverting the vibrant public discourse that is at the foundation of our democracy."
Yet rather than being embarrassed by any of this, President Obama specifically cited Kagan's role in this case as part of the reason he nominated her.
That gives the lie to one of the arguments rolled out in defense of Kagan. As one alleged First Amendment advocate puts it, "It's difficult, if not unfair, to judge someone on the basis of the positions he or she took as an advocate. All attorneys are required to represent their sides zealously. It is more instructive to look at potential justices' speeches and writings to get a glimpse into their own ideologies, temperament and philosophy of jurisprudence."
Well, which writings shall we look at? The article in which she argued that the government can restrict speech, so long as it has a good motive? So what exactly is a good motive for censorship? And hasn't it been the whole style of this administration to constantly go around propounding upon the goodness and purity of its own motives, while describing every single one of its opponents as the shifty-eyed tool of "special interests"? Kagan's argument is a license for giving unlimited power to the self-righteous.
The defense of Kagan as "just an advocate" is the "I was only following orders" defense. In the military, it is now widely recognized that there are certain orders that are illegal and which a soldier has a responsibility to disobey. The same thing applies to top government officials. Any responsibility to be a "zealous advocate" for the administration is trumped by the responsibility to be a zealous guardian of the Constitution. If she couldn't perform that function as Solicitor General, how are we to believe that she will perform that function as a justice on the Supreme Court?
This goes to the heart of the current political conflict. This year, we are called upon to decide the most important political there is: are they any limits on the power of government?
We saw this in the health care debate, when Democratic congressmen were quizzed on the constitutionality of the law and answered with a collective shrug of indifference. Charlie Rangel spoke for his colleagues when he cited their authority under the "good and welfare clause." There is no such clause, which says a lot about the congressman's attitude toward the Constitution. What he was referring to is actually the "general welfare" clause, a phrase which states that one of the goals of the Constitution is to "promote the general welfare." This has been interpreted by the left as an unlimited grant of power for Congress to do whatever it likes to us, so long as they tell us it's for our own good. In effect, that one phrase has been used to wipe out the rest of the Constitution.
And now, with Elena Kagan, we discover that even the First Amendment is not safe, that Congress may also claim the power to censor our speech, should the "general welfare" dictate that the benefits of our freedom are outweighed by the "costs to society."
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