Tuesday, May 11, 2010

Some warning flags on Supreme Court nominee Elena Kagan

First, Marjorie Cohn, past president of the National Lawyers Guild, sees Kagan as a step back from Justice Stephens on civil liberties and civil rights.

And legal commentator Marvin Ammori discusses Kagan's possible take on corporate access to the first amendment here; his suspicion is that she'd side with the majority if she were judging, rather than arguing, Citizens United.

Ammori draws some of his evidence from one of Kagan's law review articles, where she discusses Austin v. Michigan Chamber of Commerce. In that article, "Private Speech, Public Purpose," published long before Citizens United, Ammori sees her applying the same line of reasoning that the majority opinion did in the Citizens United case: a) most Supreme Court decisions have established a rule--in this case, that speech must not be restricted based on the relative status and power of the speaker in relation to others; b) that certain decisions contradict this rule, and thus, c) that those decisions should be overturned by a decision in the case at hand that conforms to the opinions set out in most preceding cases.

For Kagan, First National Bank v. Bellotti--which overturned restrictions on corporate spending in referendum campaigns, is the rule, while Austin, which prohibited corporations from using treasury money to support or oppose candidates in elections, is the exception. Her published thoughts on corporate access to free speech rights present corporate funding not as a mechanism for buying and selling candidates and dumbing down debate and policy analysis, but as part of the play of ideas, noting that "campaign finance laws ... easily can serve as incumbent-protection devices, insulating current officeholders from challenge and criticism."

If anyone has a real-life instance of more money leading to a more robust democracy, you're more than welcome--in fact, we beg you--to post it in the comments section. Comments from Maine and Arizona, states with public funding, are especially welcome. It's hard to recall anyone complaining that clean elections leads to stifling of challenge and criticism.

Ammori's article is a bit technical, but certainly not incomprehensible. We will hopefully hear more from Kagan on the limits, or lack thereof, to corporate usurpation of personhood rights, and thanks to articles like this, we'll be listening a little more closely to her answers.

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