NYT: It is unclear how Kagan would have voted in "Citizens United" as SC Judge

[pgarrison]

An argument that has been used recently is that Elena Kagan agreed with President Obama and the four most progressive judges in regard to the Citizens United ruling; and therefore she would have sided with the minority in that case. But the New York Times cautions not to take that opinion as an indicator of her views:

NEW YORK TIMES (MAY 14, 2010): An advocate’s private views and the positions she takes on behalf of a client in court need not be identical, of course. Ms. Kagan’s adversary in the Citizens United case, Theodore B. Olson, had, for instance, defended the law as solicitor general in 2003.

In announcing Ms. Kagan’s nomination, Mr. Obama said her decision to argue that case against long odds “says a great deal about her commitment to protect our fundamental rights, because in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens.”

But Ms. Kagan has been skeptical of that idea, devoting eight of the 1996 article’s 105 pages to a ruminative critique of “laws ‘equalizing’ the speech market.” She seemed wary of what she called “schemes designed to promote balance or diversity of opinions,” saying the government often cannot be trusted to regulate the marketplace of political ideas."

I recommend the piece: http://www.nytimes.com/2010/05/16/us/politics/16court.html?hp

[sandnsea]

1. It was Kagan's case, she argued it to the Supreme Court

She represented the FEC against the corporations. This is the damn dumbest argument against her that there is. Not one complaint against that woman has held up under very basic scrutiny.

http://www.law.harvard.edu/news/spotlight/constitutional-law/10_fec.html

[pgarrison]

2. But didn't she, in 1996, express skepticism about the same idea?

According to the New York Times? And why did Olson change his mind once he had to defend an interested client?

[sandnsea]

3. She wrote a 105 page article

in the University of Chicago Law Review, where she argued every which way from Sunday on the first amendment and the government, the way a brilliant legal mind would be expected to do.
http://www.scotusblog.com/wp-content/uploads/2010/03/Private-Speech-Public-Purpose.pdf

"But this account of the presumption against content-based
regulation of speech suffers from two notable defects. First, the
folly of attempting to evaluate these matters can be overstated.
Even without a fully fleshed out conception of the ideal, observers
sometimes will be able to make sensible claims about what problems
of distortion exist and how to fix them. For example, it is
not incoherent (it may even be correct) to suggest that campaign
finance restrictions would improve the speech market. Of course
not everyone will agree on these matters, but not everyone agrees
on any matter respecting the desirability of governmental action.
The key point is that it will not always (even if it will often) be
impossible to reach a cogent, well supported decision on the effects
of regulation on the existing speech market."