Sunday, May 09, 2010
Does Elena Kagan Disagree With Justice Stevens On Citizens United?
Looking at Elena Kagan's scholarship, I doubt she agrees with Justice Stevens, who dissented in Citizens United, and suspect she is a defender of corporate speech rights. Since this would surprise some people, I unpack it here in some length (for a blog post).
I am confused as to the disagreement between you and Professor Tushnet. He says that he disagress with your interpretation of Kagan's article, but his brief discussion sounds identical to your take on the matter.
Assuming tha the two of you are correct in your reading of Kagan's article (which I haven't read), it seems to me that you may have glided over the more important point. Whether or not Kagan as a justice would have agreed with the Citizens United majority (or, if she has the chance, would vote to overturn the decision) is pretty much unknowable. But it appears from your discussion that Kagan views the First Amendment claim presented in Citizens United as a serious one. That in itself puts her at odds with the president, who has portrayed CU as a completely baseless reflecting only the political preferences of the majority.
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I'm not terribly relieved at the thought that Kagan might be aware, when she votes to overturn CU, that the opposing position is serious. I suspect that Obama is aware, rhetoric aside, that it's serious. He just doesn't care.
I do not believe that the SG is actually required by her job to argue before the Supreme court that book banning is constitutional. And yet, Kagan did. I expect she'll be a civil liberties nightmare.
I'd take some comfort in the lousy job of vetting nominees this administration does, if I'd seen any sign that they screwed up concerning anything about the nominee they actually care about.
Once again we have Brett with his "I," "I," "I," ....
Hopefully, with Citizens United it will be CU later sooner with legislation.
My impression is that Obama thinks Citizens United is wrongly decided and the results will be terrible.
I did not get "a completely baseless reflecting only the political preferences of the majority" or "not serious." And, "activist" alone doesn't translate into that.
Though, yes, some critics surely said that. As to vetting problems, that depends on what Obama wants from Kagan.
I'm not really enamored on the choice, but I doubt it's a result of not vetting her. My concerns about her being something of a blank slate, not strong enough on some of the judicial ideology issues I care about and the better options available doesn't rest on that.
While the they claim the GOP has a litmus test for judicial nominations, the Dems have a far better track record of nominating a consistently progressive judiciary than the GOP has of nominating consistent conservatives. It would be a bit of karmic justice of Kagan turned out to be the Dems' Souter or at least their O'Connor.
The GOP does have a litmus test for nominations, and applies it rigorously.
It's just no the litmus test the GOP's base would prefer. I believe, for instance, that Bush got exactly what he was looking for in Souter.
There were a few new posts made here that had comments turned off. If you would like to address them separately, feel free to visit Open Balkinization to do so.
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