Elana Kagan: Judge for Yourself

Barack Obama nominated Elana Kagan to the Supreme Court to fill the seat being vacated by Justice John Paul Stevens. There are some saying she isn’t qualified to be on the Supreme Court because she’s never been a judge. Her defenders reply, “but she was the Dean of Harvard Law.”

I’m not debating whether or not she’s “qualified” to be on the Supreme Court; there have been other Supreme Court Justices without judicial experience. I’m just trying to figure out based on her record of working for the government what type of justice she would be.

The New York Times reports, “during her 2009 confirmation hearing for solicitor general, she said that someone suspected of helping finance Al Qaeda should be subject to battlefield law — indefinite detention without a trial — even if he were captured in a place like the Philippines rather than in a physical battle zone.” If she supports an expanded definition of the “battlefield law” to include people found in a place “other than a physical battle zone” that have “supported terrorism” would she also support including anyone fitting the description of “suspected extremist” — the Department of Homeland Security (DHS) Office of Intelligence and Analysis report regarding “Rightwing Extremism” states, “Rightwing extremism in the United States can be broadly divided into those groups, movements, and adherents that are primarily hate-oriented (based on hatred of particular religious, racial or ethnic groups), and those that are mainly anti-government, rejecting federal authority in favor of state or local authority, or rejecting government authority entirely. It may include groups and individuals that are dedicated to a single issue, such as opposition to abortion or immigration”?

The First Amendment Center reports, “in United States v. Stevens (2010), Kagan argued in the government’s brief that speech was entitled to no First Amendment protection if its harms outweigh its benefits: “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.” Kagan did not argue the case before the Court.” The CATO Institute adds, “Not to mention her arguments in Citizens United, the campaign finance statute that, until it was struck down could have banned books, flyers, and movies that contained political speech.”

My concern about Elana Kagan is not that she’s never been a judge; but that all of her court room experience has come as Solicitor General arguing on behalf of the government. She’s accustomed to defending big government and infringing upon the rights of individuals, will she continue to do so as a Supreme Court Justice?