Barry,

 

I’m glad were on the same page when it comes to calling on the Senate Judiciary Committee to ask probing questions of Supreme Court nominee Elena Kagan at the upcoming confirmation hearings.

 

All we’ve seen so far are these staged ‘grip-and-grin’ meetings on Capitol Hill with members of the Senate. 

 

And there’s growing criticism over how the White House is going to new limits to control the process – even producing a White House “interview” with Kagan – trying to give the impression that this is some sort of  newsworthy interview with the nominee – a move that was soundly and correctly rejected by members of the news media. 

 

Barry, the fact is there’s still much to learn about this nominee.  Although, with each passing day, there are more reports about her writings in the past.

I do want to know more about the position she took in a 1996 article in the University of Chicago Law Review entitled, “Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine.”

 

In the piece, she argued the Supreme Court should be focused on ferreting out improper government motives when deciding First Amendment cases, arguing that the government’s reasons for restricting free speech were what mattered most and not necessarily the effect of those restrictions on speech.

 

And in arguments before the high court last fall in the Citizens United case in which she argued that the government could prohibit political speech by corporations – an argument rejected by the Court – Kagan’s position on the First Amendment was sharply criticized by Chief Justice John Roberts:

 

“The Government urges us in this case to uphold a direct prohibition on political speech. It asks us to embrace a theory of the First Amendment that would allow censorship not only of television and radio broadcasts, but of pamphlets, posters, the Internet, and virtually any other medium that corporations and unions might find useful in expressing their views on matters of public concern,” wrote Roberts. “Its theory, if accepted, would empower the Government to prohibit newspapers from running editorials or opinion pieces supporting or opposing candidates for office, so long as the newspapers were owned by corporations–as the major ones are. First Amendment rights could be confined to individuals, subverting the vibrant public discourse that is at the foundation of our democracy.”

 

Granted, in that case, as Solicitor General, it was her job to defend the federal campaign finance law.  But, clearly, we need to know how she interprets the First Amendment.

 

And, then there’s the issue of abortion.  Sen. Susan Collins (R-Maine) said that Kagan told her that she considered Roe v. Wade to be “settled law.”  There’s certain to be more questioning about this during the confirmation hearings.  And there should be.

 

Planned Parenthood, the nation’s largest abortion provider, isn’t waiting for the hearings.  The organization already has endorsed Kagan without hesitation – its statement of support coming the day the nomination was announced. 

And while it’s true that Kagan does not have much of a public “paper trail” on church/state issues, or any other issues for that matter, we really need to see what some are calling a “very long paper trail” from her work in the White House Counsel’s Office for President Clinton during 1995-96.

Let’s not forget that in 2005, when John Roberts was nominated to the high court, minority Democrats wanted to see papers Roberts had written while serving in the Reagan White House Counsel’s Office in the mid-1980s.  President Bush complied, and the Judiciary Committee was given more than 50,000 pages of material detailing Roberts’ positions on many issues – including civil rights, the separation of powers and school prayer.

 

Right now, some Senate Democrats are dodging the question about whether the Obama Administration should make those records available.

Let’s hope the Kagan papers are made public for all to see.

 

In some of the closed-door meetings with Senators this week on Capitol Hill, Kagan stood by her criticism of the confirmation process saying the hearings can be a “charade.” 

 

The fact is that America can’t afford to have these confirmation hearings become a “charade.”  We need to know more about this nominee – more about her judicial philosophy – more about her views on the Constitution and the rule of law.  We need tough questions and direct answers.

 

As Senator Jeff Sessions of Alabama, a member of the Judiciary Committee, put it:  “It is a confirmation, it’s not a coronation.”

 

We will see.

 

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