When Elena met Antonin and Anthony

posted at 12:56 pm on May 10, 2010 by Ed Morrissey

Most people who oppose Elena Kagan’s nomination to the Supreme Court will focus on either her defense of Harvard’s attempt to bar military recruiters from the campus or her lack of judicial experience.  However, as HA reader Frank points out, her record as Solicitor General will provide an argument on competence, too.  Kagan didn’t do her homework before arguing the Citizens United case on behalf of the Obama administration and the FEC — which her probably-soon-to-be colleagues on the Supreme Court wasted no time in pointing out.  It came at the very beginning of her oral argument, when one might expect a Solicitor General to attempt to impress the panel with her grasp of law and precedent:

ORAL ARGUMENT OF ELENA KAGAN

ON BEHALF OF THE APPELLEE GENERAL KAGAN: Mr. Chief Justice and may it please the Court:

I have three very quick points to make about the government position. The first is that this issue has a long history. For over 100 years Congress has made a judgment that corporations must be subject to special rules when they participate in elections and this Court has never questioned that judgment.

Number two -

JUSTICE SCALIA: Wait, wait, wait, wait. We never questioned it, but we never approved it, either.  And we gave some really weird interpretations to the Taft-Hartley Act in order to avoid confronting the question.

GENERAL KAGAN: I will repeat what I said, Justice Scalia: For 100 years this Court, faced with many opportunities to do so, left standing the legislation that is at issue in this case — first the contribution limits, then the expenditure limits that came in by way of Taft-Hartley — and then of course in Austin specifically approved those limits.

JUSTICE SCALIA: I don’t understand what you are saying. I mean, we are not a self — self-starting institution here. We only disapprove of something when somebody asks us to. And if there was no occasion for us to approve or disapprove, it proves nothing whatever that we didn’t disapprove it.

GENERAL KAGAN: Well, you are not a self-starting institution. But many litigants brought many cases to you in 1907 and onwards and in each case this Court turns down, declined the opportunity, to invalidate or otherwise interfere with this legislation.

JUSTICE KENNEDY: But that judgment was validated by Buckley’s contribution-expenditure line. And you’re correct if you look at contributions, but this is an expenditure case. And I think that it doesn’t clarify the situation to say that for100 years — to suggest that for 100 years we would have allowed expenditure limitations, which in order to work at all have to have a speaker-based distinction, exemption from media, content-based distinction, time-based distinction. We’ve never allowed that.

In fact, the crux of the case was the issue of limiting expenditures as an expression of political speech, not contributions.  Kagan started off her argument by misconstruing the issue and then offering a factually incorrect reading of precedent.  Both Scalia and Kennedy objected to it before Kagan even had time to get the argument completed, although as the transcript notes, she didn’t pay much attention to them.

Without any judicial experience, Kagan has to rely on her performance at the Court as Solicitor General over a short period of fifteen months — and at best, it’s mixed.


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My oh my… remember how Alito reacted when Obama used this line of thinking in his speech? My my… what must they all be thinking?

petunia on May 10, 2010 at 2:26 PM

That’s an excellent point. She’ll probably have much less sway over Kennedy than Stevens did.

Don’t see her winning him over via intellectual arguments.

Doubt very much she’ll be successful using her feminine wiles.

Maybe she’s got a super winning personality that they’re counting on….

notropis on May 10, 2010 at 4:09 PM

Same Sex Marriage – As part of her confirmation for Solicitor General, Ms. Kagan was asked whether she would defend the constitutionality of the Defense of Marriage Act, which said that states need not recognize same-sex marriages performed in other states. Ms. Kagan’s said, as solicitor general, she would defend any acts “if there is any reasonable basis to do so.” She noted this was “a low bar for a statute to climb over.”

barnone on May 10, 2010 at 4:18 PM

She went before SCOTUS as Solicitor General and she had the primary issue wrong.

Expenditures v contributions. It’s not a small mistake. She apparently reviewed the history of SCOTUS in the context of an entirely different issue.

That’s a 1L mistake.

ace tomato on May 10, 2010 at 4:38 PM

Justice Roberts made one of the all time great statements: “We don’t put our First Amendment rights in the hands of FEC bureaucrats.”

ultraloser on May 10, 2010 at 4:05 PM

Apparently this is precisely Obama’s plan to control us by way of EPA and IRS bureaucrats.

I hope I don’t regret this but I’m not feeling very threatened by either of Obama’s appointments. They just don’t seem like leaders. Or deep thinkers for that matter.

I still think Sotomayer might turn right on abortion.

And this one, well she can’t even pick a gender! I think she could be convinced of most anything.

Stevens was a thinker. Replacing him with this fluffy person seems like a gain for our side.

Clearly the intellectual scale is tipping to our side.

petunia on May 10, 2010 at 4:41 PM

She went before SCOTUS as Solicitor General and she had the primary issue wrong.

Expenditures v contributions. It’s not a small mistake. She apparently reviewed the history of SCOTUS in the context of an entirely different issue.

That’s a 1L mistake.

ace tomato on May 10, 2010 at 4:38 PM

Or it was so clearly a freedom of speech issue that she couldn’t defend it in a straight forward way and had to hope some of the liberals would take her side for the sake of the outcome.

She didn’t convince them. That bodes well for us.

Sotomayer got slapped down by this court as well.

I am absolutely certain there are better legal minds on the left than these two.

We are lucky Obama is so incompetent.

petunia on May 10, 2010 at 4:45 PM

Here we have a nice clear distinction between the Shrub and Zero pResidencies: Shrub threw Meiers to the wolves as a tactic–she was never a serious candidate. Shrub and his people had, by then, gotten a clue about how to work the demoncrats on appointments. Does anyone seriously think that if Alito had been the first name put forward, he wouldn’t have gotten thrown back by the dims? Zero and his people don’t have a clue and are dead set against getting one–they’re ideologues, aging, raging radicals. They do what they do based on their wacked out, soft-headed, self-serving “principles”. Zero wants Kagan on the Court, because of what she is and represents for him, even though she’ll be completely ineffectual. In this context, ineffectual is good.

Ay Uaxe on May 10, 2010 at 4:46 PM

another B+ moment

tommer74 on May 10, 2010 at 4:47 PM

I’m with those who think it would be unwise to defeat this nomination. Obama is only going to appoint leftists to the court. It is better for our side that he plays identity politics and appoints mediocrities as opposed to going deep for a nominee with actual intellectual heft in the constitutional law department.

Mr. Big on May 10, 2010 at 5:18 PM

So this woman, who got absolutely JACKED by two members of the Court, is now qualified to be one of their peers?

Based on what?

Her sexuality? Gender?

David2.0 on May 10, 2010 at 6:47 PM

Her sexuality? Gender?

David2.0 on May 10, 2010 at 6:47 PM

Her orientation!

Dasher on May 10, 2010 at 6:55 PM

It’s bad to have been found to be a dumbo by the very court members you hope to serve with. Can you say precedence?

tarpon on May 10, 2010 at 7:37 PM

Her orientation!

Dasher on May 10, 2010 at 6:55 PM

Heh. We are watching the endgame of identity politics/affirmative action. When the incompetence reaches critical mass, they crash.

This progressive crap really doesn’t work all that well, does it?

2ipa on May 10, 2010 at 7:56 PM

Kagan started off her argument by misconstruing the issue and then offering a factually incorrect reading of precedent. Both Scalia and Kennedy objected to it before Kagan even had time to get the argument completed, although as the transcript notes, she didn’t pay much attention to them.

Hehehe. And Obowamao was bloviating the other day that she & her intellect was of the sort although young, she would would persuade, pull or otherwise influence the others on the bench to see things her way.

Well based on the above exchange, I say by all means, do, do waste a current liberal seat with a lightweight like her. Better to have her babbling in the minority than have some one like Kennedy who could and did on occasions pull otherwherwise conservatives to his side.

Buuut… I sure pray that God keeps the constitutionalist judges hearty and hale thru out the Obambi years until we can get one of our own back in the Oval Office. And no, McVain ain’t one of us.

AH_C on May 10, 2010 at 8:31 PM

Argh Kennedy Stevens.

AH_C on May 10, 2010 at 8:34 PM

All I can say is, if a Republican won’t vote against her, I won’t vote FOR them. Simple as that, it’s either put up or shut up.

gordo on May 10, 2010 at 9:42 PM

In a 1980 opinion piece in her college newspaper, Ms. Kagan expressed her hope that the future would “be marked by American disillusionment with conservative programs and solutions, and that a new, revitalized, perhaps more leftist left will once again come to the fore.”

This sounds eerily familiar.

redwhiteblue on May 10, 2010 at 10:29 PM

She may be one of those people who think they can always get away with re-framing whatever issue is under debate, no matter how illogical or ignorant it seems to a listener.

The president’s body language in the photo on the home page suggests he’s not exactly thrilled with her himself. Both his right leg and his right arm seem to put up a defense in her direction, and his hand is over his mouth.

alice on May 10, 2010 at 11:06 PM

Clearly the intellectual scale is tipping to our side.

petunia on May 10, 2010 at 4:41 PM

There is nothing on the other side of the scale to prevent that from happening.

Saltysam on May 11, 2010 at 1:04 AM

If you think (anyone, everyone thinks) that Barack Obama’s “anti electronic communications devices” speech the other day was somewhat out of Leftfield, IT WAS: out of Leftfield, in timing with the Elena Kagan nomination announcement.

Kagan’s scratchy history includes some documentation of her “opinions” and “feelings” that the Freedom of Speech should be curtailed, particularly if and when it’s inconvenient to the Executive Branch.

And guess what that impacts? The FCC. The internet. Government controls of the internet, broadcasting, recriminations against individuals exercising their First Amendment Rights.

And guess what else? Guess who else is keen on this objective? Bob Bauer, former DNC legal counsel, currently White House counsel, as also Barack Obama.

Their plans, they are becoming more apparent with passing hours. Cap ‘N’ Trade, Global Warming, Gay Marriage, Suppression of Freedom of Religion, etc., seems to be all balled up in the main objective by the Obama Group and that is to subvert the U.S. Constitution. What better way to do that than by an Executive Branch threatening others with an ideologue Celebrity Character making preprinted propaganda speeches and a Supreme Court who is just chatty enough to get the “wayward Conservative opinions” under the table?

Lourdes on May 11, 2010 at 8:12 AM

The very idea that Elena Kagan could somehow “sway” the Supreme Court justices with her “hey, I’m the Dean, let’s have a meeting” methods, is just laughable.

It could work with Sotomayor, it’d never work with Alito, Thomas and Scalia, and thank God for that.

Lourdes on May 11, 2010 at 8:14 AM

She may be one of those people who think they can always get away with re-framing whatever issue is under debate, no matter how illogical or ignorant it seems to a listener.

The president’s body language in the photo on the home page suggests he’s not exactly thrilled with her himself. Both his right leg and his right arm seem to put up a defense in her direction, and his hand is over his mouth.

alice on May 10, 2010 at 11:06 PM

Kagan is almost certainly an Axelrod-Bauer-Dunn nominee and Obama’s just posing for the photos and making the speeches.

Lourdes on May 11, 2010 at 8:15 AM

All I can say is, if a Republican won’t vote against her, I won’t vote FOR them. Simple as that, it’s either put up or shut up.

gordo on May 10, 2010 at 9:42 PM

I AGREE WITH YOU! I’ve had two days to read about Kagan and already I find numerous offenses about her to the SC.

The main one being that from what history IS recorded about who Kagan is, the one thing she has established is she is NOT a fan of the Constitution. Rather, she’s an activist who bases her opinions on “feelings” like wants and what she thinks should be and ought to be and how it might be redone to be what. She’s an academic who works a classroom and a faculty list and should never be on the SC.

The primary qualification for the SC is to possess FIDELITY TO THE CONSTITUTION. That means, you don’t want it reworked, customized, accommodated to suit your feelings and wishes, but that one is is capable of and determined to (and has proven ability to) bear fidelity to the document as it exists.

Lourdes on May 11, 2010 at 8:19 AM

dczombie: “The left was outraged over the Miers nomination because she was ostensibly unqualified due to her relative lack of experience.”

Yeah, but as soon as they heard republicans griping about her they began to warm up to her. I don’t blame them. I do the same thing. The louder the left squeals, the more I’m for it.

Oyster on May 11, 2010 at 9:48 AM

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