Today’s bloggers briefing hosted by the Heritage Foundation featured two advocates of conservative legal policy commenting on the credentials of Solicitor General Elena Kagan, who President Barack Obama nominated to the Supreme Court
While the Center for Competitive Politics has not taken a position on whether Kagan should be confirmed as an Associate Justice of the Supreme Court, we’ve been detailing her mysterious record on campaign finance issues, and we’ve advocated for a full examination of her views on First Amendment political rights during the confirmation process.
Carrie Severino, the chief counsel and policy director at the Judicial Crisis Network and Robert Alt, a senior legal fellow and deputy director at Heritage’s Center for Legal and Judicial Studies offered their thoughts on Kagan from the perspective of how conservatives and libertarians should respond to her nomination.
Severino explained that this nomination is an opportunity of sorts for the Federalist Society set: it’s a chance to discuss constitutional principles at a rare time when the public is paying attention to the Supreme Court.
Severino also knocked Kagan for her limited range and breadth of experience as an advocate, blasting Kagan as an “Obama insider” from their University of Chicago Law School days, a “complete blank slate,” and a “political animal” with a “purposefully blank record.”
Before Obama tapped Kagan as solicitor general, she hadn’t argued a case before any court, Severino noted. She pressed bloggers and advocacy groups to hold Kagan to the standard she articulated for Supreme Court nominees in a 1995 piece arguing for candor at confirmation hearings. The White House has backtracked on this issue on Kagan’s behalf. “That’s just another way of saying, ‘We’d like a double-standard here, please,'” Severino said.
When commenting on the confirmation hearings for Supreme Court Justices Stephen Breyer and Ruth Bader Ginsburg, Kagan wrote: “When the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce.
As such, we expect her to be forthcoming about her views, specifically on campaign finance matters. According to Sen. Arlen Specter (D-Penn.), Kagan told him privately she disagreed with the Court’s decision in Citizens United v. Federal Election Commission freeing up independent political speech because the Court didn’t show enough deference to Congress.
As Congress responds to Citizens United with another proposed mess of campaign finance regulations (the ‘DISCLOSE Act’), Senators should ask Kagan exactly how much deference Congress should enjoy when seeking to silence opponents amid midterm campaigns. At the reargument in Citizens United, Kagan explained (incorrectly) that the FEC has never attempted to restrict a political book (backtracking from her deputy’s assertion that Congress could ban political books funded by unions or corporations), but that Congress should be able to ban political pamphlets.
At her confirmation hearings for the position of solicitor general, Kagan reversed course on her view of “seriousness and substance” in confirmation hearings, saying she is “less convinced than I was in 1995 that substantive discussions of legal issues and views, in the context of nomination hearings, provide the great public benefits I suggested.”A “political animal”? You be the judge.
From a quick read of the questionnaire submitted to the Senate Judiciary Committee today by the Obama administration on Kagan’s behalf, it appears she’s inclined to obfuscate on a few things, at least initially.
Let’s just focus on campaign finance issues…
On page 89, Kagan dutifully lists her role as solicitor general during Citizens United; no surprise there.
Her answer to question 25(b) on page 199, though, seems hard to believe. The question reads: “Has anyone involved in the process of selecting you for this nomination (including, but not limited to anyone in the Executive Office of the President, the Justice Department, or the Senate and its staff) ever discussed with you any currently pending or specific case, legal issue, or question in a manner that could reasonably be interpreted as seeking any express or implied assurances concerning your position on such case, issue, or question?…
Kagan answered, “No.”
This seems to plainly contradict what Sen. Specter said about his private conversation with Kagan last week which touched on Citizens United. According to Politico‘s account of Specter’s remarks, “[Kagan] sided with him on several issues, most notably her concern about the Supreme Court’s decision this year in Citizen United v. the Federal Election Commission that opened the door to increased corporate and union spending in federal elections. Asked if their talk made him more comfortable with her nomination, Specter said, “It did.”
“When you talk about Citizens United. … She said there wasn’t sufficient deference to Congress, something I feel very, very strongly about.”
Even with the caveat that Sen. Specter (although he is a senator from the majority party on the Judiciary Committee) might not technically be “involved in the process of selecting” Kagan, it would require a supreme suspension of disbelief to assume that no one from the Obama selection team discussed Citizens United with Kagan before giving it in a central role in her nomination roll out.
Furthermore, Kagan includes an incomplete response to question 18 on page 196-197 regarding the courses she taught as a professor of law at Harvard and the University of Chicago.
Although it’s understandable she does not have ready access to every past syllabus, Kagan declined to provide the years taught for her courses. Election law observers may take interest in a course she taught at the University of Chicago (sometime between her stint there from 1991-1997) called “Law of Political Process,” a seminar that “dealt with issues of election law such as districting and campaign finance.”
Kagan has authored papers as a law professor addressing campaign finance issues and co-authored domestic policy memos on McCain-Feingold as a Clinton Administration staffer, most of which remain under wraps as government officials scrub the 160,000 pages of personal information. A more detailed examination of this record—and more candor from Kagan—will be required to understand how she would likely interpret the First Amendment.
Alt, speaking at the bloggers briefing, argued that Kagan is not a centrist and urged conservatives to aggressively fight the nomination for both tactical and principled reasons. Alt noted that Justice John Paul Stevens, who Kagan would replace, is 90 and Kagan is 50. He also suggested Ginsberg, who was recently treated for cancer, would retire before the end of the Obama nomination-providing President Obama with his third opportunity to shape the Court. If fans of the Federalist Society give up on pressing Kagan to articulate her views this time around, they’ll be at a distinct disadvantage for the third Obama nomination.
Kagan “embraces the progressive agenda,” Alt said. “It’s not a question of whether Kagan is liberal; it’s how liberal she is.”
Alt stressed the need to understand how Kagan approaches the Constitution. He speculated that Kagan believed the court should be used as an instrument to elevate the despised or disadvantaged, similar to Obama’s remark during the confirmation process of Justice Sonia Sotomayor that he favored a jurist with “empathy.” The question is whether Kagan believes the Constitution is a firm anchor of law or whether it means whatever five Justices say it means, Alt said.
No matter how one reacts to the Rorschach test of Kagan’s cloudy views on nearly every important issue, her views deserve deeper exploration by senators, journalists and activists alike as Kagan advances toward a lifetime appointment interpreting the Constitution and U.S. law.
For more on potential questions for Kagan at her upcoming confirmation hearings, check out the recent commentary by Brad Smith over at Politico’s Arena.
