Since Monday, U.S. Solicitor General Elena Kagan has been fielding questions from the Senate Judiciary Committee, the group tasked with questioning Kagan to determine her fitness to serve on the U.S. Supreme Court before the full Senate votes to confirm or deny her nomination.
After just two days of her hearings, it has become clear that Kagan is, if not unfit to serve on the Court, at least a far-from-ideal nominee.
This is not because she lacks experience on the bench. Some of the high court’s most distinguished justices ascended to their positions without having been judges before.
It is also not because of any demographic consideration. As far as I’m concerned, those should matter no more than a nominee’s dietary choices, or any other aspect of her life that is impertinent to how she would perform her job.
Rather, I believe Elena Kagan is unfit to serve on the Supreme Court because of her flawed understanding of the U.S. Constitution, a document she will, in all likelihood, make an oath to support upon being sworn in before October.
Her answer to one significant question she repeatedly fielded from several senators makes this flawed understanding abundantly clear.
When Sen. Orrin Hatch, R-Utah, asked her to discuss her opinion of the Court’s decision in the recent Citizens United v. FEC case, which struck down restrictions on corporate and union-financed political speech despite Kagan’s efforts on behalf of the Obama administration to maintain said restrictions, Kagan refused to answer directly and instead emphasized that her role in the case had been as an “advocate … of the government’s interests.”
While this is technically true, the fact that her defense of her role in the case amounts to “I said what I did because it was my job” should give our elected representatives pause.
As I noted on these pages shortly after the Court’s decision was handed down in January, Kagan was put on the case after her deputy made the shocking claim that, in his opinion, current campaign finance restrictions on corporate speech in the run-up to elections would allow the federal government to prohibit the publication of books containing political endorsements.
In what she apparently considered a moderating shift on the issue, Kagan told the Court when asked about her deputy’s answer that she didn’t think the government could ban books but that “pamphlets” were probably fair game.
The sad fact about this issue is that, as the law was written, it probably did extend both that power and the power to ban books to the federal government.
Fortunately for free speech, however, the First Amendment and the Roberts Court — at least a slim majority of it — stood in direct opposition to this regulation.
That Kagan appears to consider the “just doing my job” excuse a legitimate one is troubling.
I can understand why someone might hide behind this excuse in cases of minor gravity in which she had to actively argue against her firm belief on some issue, but in a case involving a fundamental right of this country’s people, that of free speech, I would expect a sincere defender of the Constitution to refuse to take the case or, if that were not an option, to quit her job before disparaging the Constitution to keep it.