Naked Emperor News is touting this one with the breathless headline, “Kagan: It’s Fine if The Law Bans Books Because Government Won’t Really Enforce It,” but insofar as that suggests this is her personal view of the FEC’s power, it’s not quite fair. She’s the Solicitor General, and as such, she’s duty bound to defend whatever crappy law they toss in front of her with whatever crappy argument she can come up with. And this one’s plenty crappy, as you’re about to see. Even that’s not that big of a deal — good lawyers can get cornered during oral argument with judges as sharp as the Supremes — but Kagan’s performance in “Citizens United” was noted months ago as especially poor in a variety of ways. Ed wrote a post back in May about a basic factual error she made right at the beginning of the hearing. Politico chipped in around the same time with a review of a key strategic blunder:
Patch said Kagan hurt the cause of campaign finance regulation in Citizens United by deviating from the central argument in the Austin case – that immense corporate spending could disproportionately shape and distort voters’ opinions on elections.
Instead, Kagan argued that corporate-funded ads could corrupt the politicians benefitting from them and violate the will of shareholders whose money might be spent on them.
“That was a tactical error that was beneficial to people like us who think that campaign finance regulations are too burdensome,” said Patch…
Kagan’s abandoning the holding in Austin that corporate ad spending distorts public opinion “gave an opening (which Chief Justice Roberts took) to further denigrate the rationale by saying: Look, even the government has abandoned it,” said Rick Hasen, a professor at Los Angeles’s Loyola Law School who specializes in election law and usually favors restrictions on campaign spending.
Kagan’s views of free speech are bound to come up tomorrow, if only because of one fateful line in a brief she signed, but there’s some reason to think her views on this subject might be closer to the conservatives than to the liberals. In any event, consider the clip a reminder that a president doesn’t necessarily pick the best person for the job, just the best person who can be easily confirmed. And she will, almost certainly, be easily confirmed. Exit question: Wasn’t one of the big Democratic arguments in favor of Kagan the fact that she’d be able to sway swing votes like Kennedy’s through the sheer force of her intellect and persuasive ability?