Home > posts > The Best Case Yet Against Elena Kagan …
May 18th, 2010 6:56 pm
The Best Case Yet Against Elena Kagan …
Posted by Print

… comes courtesy of the Heartland Institute’s Ross Kaminsky over at Human Events.

In a piece with the wonderfully direct title “Can Kagan be Trusted to Defend the Constitution?”, Kaminsky takes the would-be justice to town on her record as Solicitor General and as a legal academic.

The whole piece is worth reading (especially for two extended quotes in which Chief Justice Roberts excoriates Kagan’s legal reasoning from the bench). But what may be most provocative is this little nugget:

Kagan’s hostility toward the plain meaning of the 1st Amendment is nothing new. In a 1996 paper (PDF) for the University of Chicago Law Review (she was a professor at the University of Chicago at the same time that Barack Obama was a lecturer there), Kagan suggested that the government’s motives in restricting speech should be important factors in whether those restrictions are upheld by a court. She wonders aloud, in eye-opening Socialist language “what view of the 1st Amendment accounts for the court’s refusal to allow, by means of restrictions, the redistribution of expression?”

You read that right; she said “redistribution of expression.”

She continues: “The question remains, however, why the court should treat as especially suspicious content-neutral regulations of speech—such as the regulations in Buckley—that are justified in terms of achieving diversity.” You can already hear her ruling in a sure-to-come challenge to the re-imposition of the Fairness Doctrine meant to muzzle talk-radio conservatives in the guise of increasing “diversity of opinion”.

Similar to her argument in Stevens which implies a government arbiter of speech, Kagan makes this remarkable statement in her paper: “If there is an ‘overabundance’ of an idea in the absence of direct governmental action—which there well might be when compared with some ideal state of public debate—then action disfavoring that idea might ‘unskew,’ rather than skew, public discourse.”

Be afraid, America. Be very afraid.

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