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Kagan Conjures Madison: Obfuscates Her Way to the Supreme Court

By Gary Starr for the Neville Awards
July 1, 2010

Elena Kagan will be confirmed by a pliable Senate despite her warped and progressive (regressive) view of freedom in America.. The Republicans have little taste for a filibuster, perhaps anticipating their own majority in 2012, but unable to stop a Democrat filibuster. Kagan looked rediculous explaining why, after denouncing the confirmation process as "a vapid and hollow charade," she now wrapped herself in the mantle of vapidity in her grab for the judicial brass ring. Such is the price of admission to the Supreme Court.

Ever since Robert Bork got "borked" by the Democrats on the Senate Judiciary Committee, and lost his bid to be confirmed to the Supreme Court, nominees have been advised to say as little as possible. The confirmations have become little more than Kabuki theater.

We can count on this: liberal/progressive nominees will lie and posit themselves as the reincarnation of James Madison. Once confirmed they rule as judicial activists and treat the Constitution as a "living breathing document." This means that, for a progressive, the Constitution means whatever the current times demand.

Conservative nominees will lie as well, but, at least, we can count on them not treating the Constitution as a multiple choice test or a collection of legal suggestions. For conservatives the Constitution means what it says.

Kagan may be trying to conjure James Madison, but a recent comment by Sen. Amy Klobuchar reveals everything you need to know about the progressive approach to the judiciary:

Ann Coulter writes:

On MSNBC's "Hardball" back in May, Sen. Klobuchar said: "We want to get some things done on this court."

Get some things done? Amy Klobuchar is not considered a lunatic, but this was a crazy, giveaway moment.

The Supreme Court is not supposed to be "getting things done." ...Klobuchar's [statement reveals] a massive misunderstanding of the role of the court.

Congress, as the people's elected representatives, is supposed to "get things done." If they don't, that usually means the people don't want those things done. It's not the court's job to say: "Hey, Congress, you forgot to enact this! Don't worry, we'll take care of it."

But liberals see the Supreme Court as their backup legislature, giving them all the laws Democrats can't pass themselves because they'd be voted out of office if they did.

Elena on the Commerce Clause

Sen. Coburn asked the following question: if Congress passed a law saying Americans were required to eat three fruits and three vegetables a day, , would that be legitimate under the Commerce Clause? It sounds like a "dumb law," Ms. Kagan wisecracked, but then added that "courts would be wrong to strike down laws that they think are senseless just because they're senseless."

In other words, Kagan believes the federal government can so intrude in your life that government bureaucrats will be able to dictate what you can eat for dinner. And if such an absurd law comes before the court, Kagan will uphold its constitutionality.

The question that should be asked is whether Kagan recognizes any limits on the Commerce Clause, which is used as a legislative sledgehammer to regulate or mandate just about anything. The Obama Administration is eyeing the Commerce Clause as the justification to defend ObamaCare and the individual mandate. Some 20 states are challenging the law on the grounds that forcing people to buy health insurance is unconstitiutional.


Senator Tom Coburn: If I wanted to sponsor a bill and it said, "Americans, you have to eat three vegetables and three fruits - every day. And I got it through Congress and it's now the law of the land. Tsk. Gotta do it. Does that violate the commerce clause?

Elena Kagan: Sounds like a dumb law

Coburn: Yeah, I got one that's real similar to it that I think is equally dumb. I'm not going to mention which one it is.

Kagan: But I think that the question about whether it is a dumb law is different from the question of whether the question of it's constitutional.And , and uh, and uh, I think the courts would be wrong to strike down laws that they think are, er, uh, senseless, just because they're senseless.

Coburn: Well, I think the question is. Do we have the power to tell people what to eat every day?

Kagan: eh, Sen, Senator Coburn... i, it's, uh stammering

Coburn: What is the extent of the commerce clause? We have the wide embrace of the commerce of clause - which these guys who wrote this never ever fathomed that we would be so stupid to take away our liberties away by expanding the commerce clause this way.

Kagan: "deference should be provided to Congress with respect to matters that affect interstate commerce...the principal protector against bad laws is the political branches themselves."

James Madison's head would be exploding about now. When it was written, the Commerce Clause was intended as part of the Constitution's enumerated powers to limit government abuse by opportunistic and corrupt politicians who write "dumb laws."

From the Heritage Foundation Morning Bell:

The law Coburn was referring to, of course, was President Barack Obama's signature legislative accomplishment: the Obamacare provision that forces all Americans to buy health insurance. But Jefferson and the other Constitution framers designed the document to protect our "unalienable Rights" by limiting the power of Congress. They designed an ingenious system of checks and balances that divides state and federal authority in the hope of preventing any one government from exerting too much control over a free people. Specifically, Article I allocates to Congress "[a]ll legislative powers herein granted," and section 8 of Article I (referred to by Sen. Coburn above as the Commerce Clause), grants Congress the authority "[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes." The Supreme Court has always understood that, taken together, these clauses put some legislative powers beyond Congress' reach.

But Kagan has now testified that not only does she find the Founders' concept of "unalienable Rights" irrelevant to Constitutional interpretation, but she also declined to say if the Constitution prevents Congress from telling Americans what to eat. Her evasive non-response to Coburn's Commerce Clause inquiry shows that she would indeed be a rubber-stamp for almost any part of the Obama agenda that Congress enacts. So if the Obama administration convinced Congress (and this is a total hypothetical) that the survival of a single car company, let's say Chrysler, was absolutely necessary for the survival of the nation's economy, and Congress then passed a law forcing all Americans to buy a Chrysler car, Kagan would find such a law, while perhaps "dumb," perfectly constitutional. Jefferson must be rolling in his grave.

Elena on Progressivism

Sen. Jeff Sessions, the top Republican on the Judiciary Committee, pressed Kagan on whether she agrees with the characterization that she is a legal progressive, as she was called by Ron Klain, Vice President Biden's chief of staff.

"I honestly don't know what that label means. I'm not quite sure how I would characterize my politics. But one thing I do know is that my politics would be, must be, have to be completely separate from my judging."

"I agree with you to the extent that you're saying judging is about the case that comes before you... and then considering how the law applies to their case. Not how your own personal views, own political views might suggest anything about the case."

Sessions concluded the exchange by saying he would classify Kagan as a "legal progressive."

"I would just say, having looked at your overall record, having considered those two people who know you very well... I would have to classify you as someone in the theme of the legal progressive," he said.

Ironically Hillary Clinton and Barack Obama seem to have a very clear idea of what a progressive is. But not our Elena, a close friend of Obama's.

Elena on Book Banning

This is the most complicated aspect of Kagan's warped view of freedom in America.

In the first case she argued before the Supreme Court as solicitor general, Kagan argued that the federal government has the power to ban books it deems to be "political electioneering."

However, Kagan assures us that, even though the federal government has not used that power in the 60 years the law being on the books, she did affirm that political pamphlets could run afoul of the law as examples of "classic electioneering."

But the law is on the books and there is nothing to stop someone with fascist tendencies like Obama from using it.

Experts write the following:

Will Elena Kagan Allow Books to be Banned?
Understanding the Supreme Court nominee's chilling argument in Citizens United
Daniel Shuchman | June 29, 2010

As solicitor general of the United States, Elena Kagan argued in front of the Supreme Court that the federal government had the constitutional authority to ban certain political pamphlets. She also strongly implied that some political books, if they were partisan enough, could also be censored.

Kagan's extraordinary claims emerged during the second oral argument of Citizens United v. Federal Election Commission, the campaign finance case made famous by President Barack Obama when he publicly excoriated the justices for their ruling during his State of the Union address. The president alleged that Citizens United would allow corporations to subvert the political process with their economic power. In fact, the case concerns the fundamental political liberties of all citizens. The true stakes were dramatically revealed in the two rounds of oral argument heard by the Court.

In the first argument before the Court, on March 24, 2009, Kagan's deputy, Malcolm L. Stewart, represented the government by arguing for the constitutionality of a statute prohibiting corporations and unions from spending funds from their general treasuries to advocate the election or defeat of political candidates. The justices subjected Stewart to a series of stark hypothetical situations testing the extent of the censorship power that the Obama Administration viewed as constitutionally permissible.

For example, Stewart was asked by Chief Justice John Roberts what would happen if a corporation were to publish a 500-page book discussing the American political system which concluded with a single sentence endorsing a particular candidate. Kagan's deputy answered that such an endorsement would constitute "express advocacy" and therefore the corporation could only fund the publication of the book through a political action committee. "And if they didn't, you could ban it?" asked the chief justice. "If they didn't, we could prohibit publication of the book," Stewart replied.

Even the most liberal justices, usually the most willing to curtail political free speech, seemed a little troubled. Justice David Souter asked what would happen if a labor union paid an author to write a book advocating the election of a particular candidate and then submitted the manuscript to Random House, which then agreed to publish it. The deputy solicitor general replied that he was unsure whether there would be a basis for suppressing such a book, but clearly stated that "the labor union's conduct would be prohibited."

Later, the argument turned to other forms of media that the government would have the right to censor. The implications of the administration's position were so enormous that Justice Antonin Scalia seemed almost incredulous. He sarcastically interrupted to say "I'm a little disoriented here, Mr. Stewart. We are dealing with a constitutional provision, are we not; the one that I remember which says Congress shall make no law abridging the freedom of the press? That's what we're interpreting here?" With no apparent irony, Stewart replied, "That's correct."

The justices were apparently concerned by what they heard, requesting an unusual second oral argument in the case, on September 9, 2009. This time, Kagan went to the Supreme Court herself. Justice Ruth Bader Ginsburg got right to the point by asking Kagan whether it was still the government's position that Congress could ban TV, radio, and newspaper ads, and even campaign biographies under the rubric of campaign finance reform. "The government's answer has changed," Kagan replied, which sparked laughter in the courtroom. Given the skeptical questioning at the prior hearing, Kagan seems to have made the tactical decision to back off from her office's initial claims and opted to craft a less controversial way of getting the justices to accept significant restrictions on free speech. She assured the Court that she took their prior reactions and hypotheticals "very seriously" and that the Obama Administration reconsidered its position. Perhaps this is an example of her reputed pragmatism and interest in building coalitions. In any event, her attempted finesse did not stand up so well under cross-examination.

Kagan conceded that although the statute in question did cover "full length books" it would be subject to "quite good" challenges if it was ever so applied in practice. Moreover, she pointed out that the Federal Election Commission never enforced the law with respect to books, implying that citizens should not worry about being prosecuted. Chief Justice Roberts immediately seized on this, saying "We don't put our First Amendment rights in the hands of FEC bureaucrats." He then asked whether the statute could be used to ban a pamphlet. Such a publication, Kagan admitted, would be different; "a pamphlet is pretty classic electioneering" and could be constitutionally prohibited. She tried to reassure the justices that a book containing hundreds of pages could not be banned just because the last sentence endorsed a candidate, as her deputy had claimed a few months earlier. However, she strongly implied that if the book engaged in "express advocacy" as a whole, it could be banned. Her position would seem to require the FEC to define the differences between books and pamphlets and decide how many sentences in a book are necessary to qualify as "express advocacy." Kagan never addressed whether it was desirable for FEC staffers to become either book reviewers or a de facto national censorship committee. Ultimately, the Court ruled against Kagan by a 5-4 margin.

Many questions remain unanswered about Kagan's comfort with banning political publications and limiting free expression in other media. She might say that her own views on these issues are private and that she was merely advocating for her client in this case. However, it is interesting to note that in nominating Kagan, President Obama went out of his way to praise her defence of ordinary citizens against "unscrupulous corporations," citing her work on Citizens United in particular. "Despite long odds of success, with most legal analysts believing the government was unlikely to prevail in this case, Elena still chose it as her very first case to argue before the Court," Obama declared.

Yet Obama and Kagan both ignored the fact that not all corporations that advocate for candidates are big and "unscrupulous." Most are sole proprietorships of small businesses, and many are non-profits, as was the plaintiff in Citizens United.

As the Senate considers her nomination this week, they ought to ask her the following:
  • If a citizen who is the sole owner of a corporation that operates a bakery wants to use his business funds to put a candidate's poster in his storefront window, can that be banned under the Constitution?
  • If a group of like-minded citizens form a corporation for the purpose of advocating for candidates in whom they believe, can that corporation constitutionally be prevented from spending money?
  • Is it constitutional for the FEC to review political books for content and ban them if they run afoul of a campaign finance law?
  • Is it constitutional for media companies to publish content advocating for political candidates? If so, why should they be different from other companies under the Constitution?
  • If a corporation or labor union produces a pamphlet with its own funds advocating the election of a candidate, can that document be banned under the Constitution?
The answers would reveal a lot about what kind of justice Kagan might be and how she reconciles her views with the First Amendment. Perhaps more importantly, it would be an opportunity for the public to see what is truly at stake when the government wants to restrict an individual or corporation's ability to support the candidates of its choice.

Daniel Shuchman is a New York money manager and a member of the Board of Directors of the Foundation for Individual Rights in Education. He has written for The Wall Street Journal and The Harvard Journal of Law and Public Policy.

Kagan: Yes, government can ban books
Obama pick grilled by Supreme Court for supporting free speech censorship
By Drew Zahn

In the first case she argued before the Supreme Court as solicitor general, Elena Kagan, President Obama's pick to join the court, argued that the federal government has the power to ban books it deems to be "political electioneering."

The stance begs the question how Kagan would respond toward legal challenges levied against political exposés like "The Obama Nation" or "The Manchurian President."

And even though Kagan testified the federal government has not used that power in 60 years of the relevant law being on the books and wouldn't be likely to use it, she did affirm that political pamphlets could run afoul of the law as examples of "classic electioneering."

Are you leery of what Kagan stands for? Here's the documentation on all the president's men - and women!

David N. Bossie is president of Citizens United, the organization that brought the case in which Kagan argued, Citizens United v. Federal Election Commission, to the Supreme Court:

"In Elena Kagan, President Obama has found a nominee whose views on the First Amendment are at worst disqualifying and at least should be questioned rigorously," Bossie said in a statement. "Kagan argued that a statute that, by her own admission, banned books was not 'overbroad,' and that pamphlets produced with corporate funds could be censored."

He continued, "Authors and pamphleteers from Thomas Paine to Hamilton, Madison, and Jay writing as Publius were critical to the founding of this country. The founders, Madison in particular, recognized the danger inherent in allowing the government to regulate what could or could not be said about it and wrote the First Amendment to guard against exactly the kind of government censorship that Solicitor General Kagan advocated for in Citizens United."

Republican leadership in Congress has also picked up on the story, as Minority Leader Sen. Mitch McConnell, R-Ky., told NBC's "Meet the Press" that Kagan's testimony was "very troubling."

"This whole area of her view of the First Amendment and political speech is something that ought to be explored by the Judiciary Committee and by the full Senate," McConnell said.

Kagan argued Citizens United v. FEC before the court in the wake of her deputy, Malcolm L. Stewart, who created an uproar after Justice Roberts had asked him if the government could ban a 500-page book that at the end said, "And so vote for x."

Stewart answered, "We could prohibit the publication of that book."

According to the official transcript of testimony, Justice Ginsburg raised the question again when Kagan appeared before the court.

"May I ask you one question that was highlighted in the prior argument," Justice Ginsburg asked, "and that was if Congress could say no TV and radio ads, could it also say no newspaper ads, no campaign biographies? Last time the answer was, yes, Congress could, but it didn't. Is that is that still the government's answer?"

Kagan then modified her deputy's answer, arguing that while a section of federal election law referred to as 441b does, "on its face," apply to "other media," such as full-length books, the FEC "has never applied 441b in that context. So for 60 years a book has never been at issue."

Section 441b specifically prohibits corporations and labor unions from paying out of their general budgets for mass communications - like TV and radio commercials - that endorse candidates for federal office. The practice is seen as "electioneering" when done within 30 days of voting.

And while many organizations create separate political action committees to get around the "general budget" restriction of 441b, Citizens United had created a DVD made available for view-on-demand, which it argued did not constitute a "mass communication" according to federal law.

In the course of arguments before the court, however, the question arose as to whether books could be considered "mass communication."

Justices Scalia and Roberts were not satisfied with Kagan's answer and immediately sought clarification - Scalia suggesting interpreting the law so broadly as to include books might necessitate striking the law as unconstitutional, Roberts wondering whether even pamphlets would fall under Kagan's definition of "other media" regulated by 441b.

"I think a pamphlet would be different," Kagan answered. "A pamphlet is pretty classic electioneering, so there is no attempt to say that 441b only applies to video and not to print."

Upon her answer, Justice Scalia jumped into the argument as well, saying that based on Kagan's logic he had "no idea where the government would draw the line with respect to the medium that could be prohibited."

Kagan then softened her answer, reiterating an earlier suggestion that an FEC prohibition of a book would likely lose a legal challenge and adding, "What we're saying is that there has never been an enforcement action for books. Nobody has ever suggested - nobody in Congress, nobody in the administrative apparatus - has ever suggested that books pose any kind of corruption problem."

Scalia, however, was still not appeased.

"So you are a lawyer advising somebody who is about to come out with a book and you say, 'Don't worry, the FEC has never tried to send somebody to prison for this,'" he postulated. "'This statute covers it, but don't worry, the FEC has never done it.' Is that going to comfort your client? I don't think so."

The discussion resolved when Justice Roberts brought back his original question of whether or not a book produced by a corporation or union that ended with "vote for Jones" could be banned.

"I think that that wouldn't be covered, Mr. Chief Justice," Kagan responded. "The FEC is very careful and says this in all its regulations to view matters as a whole. And as a whole that book would not count as express advocacy."

Could an entire book be considered "express advocacy" and face an FEC ban?

Kagan's only answer came in an earlier statement: "One cannot imagine very many books that would."

But while the justices allowed the matter to drop and proceeded to other arguments, Citizens United has continued to speak up.

"Introducing Elena Kagan," Bossie said in his statement, "President Obama mentioned no other decision and applauded her for choosing CU v. FEC to be her first argument as Solicitor General, making it clear that her participation in that case was a significant factor in his decision to nominate her.

He concluded, "Given President Obama's reliance on her role in Citizens United v. Federal Election Commission and the essential importance of the First Amendment to American democracy, I urge the Senate to reject Elena Kagan's nomination to the Supreme Court. Every American has a fundamental right to speak out for or against their elected representatives without fear of reprisal, and a nominee who does not respect that right has no business on our nation's highest court."

As WND reported, Kagan's stances on the First Amendment are already coming under scrutiny in the Supreme Court confirmation process.

In a 1996 paper, "Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine," Kagan argued it may be proper to suppress speech because it is offensive to society or to the government.

The paper asserted First Amendment doctrine is comprised of "motives and … actions infested with them," and she goes so far as to claim, "First Amendment law is best understood and most readily explained as a kind of motive-hunting."

Kagan's name was also on a brief, United States v. Stevens, dug up by the Washington Examiner, stating: "Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs."

The Citizens United case, however, has brought the boil of questions over Kagan's First Amendment views to the front burner.

In a speech on the Senate floor yesterday, Sen. McConnell stated, "Indeed, the amount of power Ms. Kagan and her office argued that the federal government had in this area was so broad that both liberal and conservative justices found their arguments jarring, given the reverence Americans of all ideological stripes have for the First Amendment."

He continued, "Now, I asked Ms. Kagan about her position in this case last week when we met in my office. She said she made the arguments she did because she had to defend the statute. And I understand that her office has to defend federal law. But the client doesn't choose the argument, the lawyer does. And the argument Ms. Kagan and her office chose was that the federal government has the power to ban books and pamphlets.

"The administration has nominated one of its own to a lifetime position on the country's highest court," McConnell concluded. "We need to be convinced that Ms. Kagan is committed to the principle that the First Amendment is not, as she put it, just some 'unfortunate' impediment to the government's power to regulate."
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