Citizens United: Does Elena Kagan Disagree With Barack Obama On Corporate Speech?

[depakid]

Looking at Elena Kagan's scholarship, I doubt she agrees with Barack Obama and Justice Stevens, who dissented in Citizens United, and suspect she is a defender of corporate speech rights. Since this would surprise some people, I unpack it here in some length (for a blog post).

...Kagan's critics (led perhaps by Glenn Greenwald) and defenders have sparred over executive privilege and some hiring decisions at Harvard and her opposition of Roe v. Wade.

...We can expect Kagan to be questioned about Citizens United. And, during confirmation hearings, a Senator asked Justice Sotomayor about precisely question of phone and cable companies' supposed First Amendment rights to interfere with citizens' speech choices, and a judge asked the question at the FCC's recent, major argument involving Internet policy.

For the answer, we can turn to one of Kagan's law review articles, which sheds some light on how she thinks about these issues.

In that article, she discusses two cases, Austin (later overruled by Citizens United) and Turner (which I'll explain here). To understand legal arguments, you have to know the cases discussed, as lawyers think in cases. If a lawyer says she supports Roe v. Wade and opposes Lochner v New York, you know what she means if you know those cases....

<snip>

Kagan, of course, actually argued Citizens United for the Obama administration; but that doesn't mean that she agreed with her client's position. It was her job as Solicitor General to represent her client (which Justice Roberts' confirmation reminded us), which she does in all her arguments, even those less popular. And, in Citizens, Kagan refused to argue the case based on the existing precedent.

<snip>

Here is the conclusion I am reaching: the implication of her arguments are that Austin should be overruled (Citizens United did that) and so should Turner, under the standard argument model, because they are "exceptions" to the broad rule. She does not explicitly call for their reversal, but the argument structure almost necessarily implies it.

My caveats are:

1. She didn't come right out and say the cases should be overruled. She just made every other step in the argument, and didn't state the usual conclusion. Maybe that means she disagrees with overruling the cases. But there's little indication of that either.

2. Kagan wrote this article 14 years ago, and both the law and Kagan herself have changed since. She may have a different view of the rule and the exception for campaign finance and cable, or a different view of how they apply. She doesn't have a detailed record on the question.

3. Kagan's article claims to be descriptive, not normative. That is, she claims largely to be just describing case law, not endorsing it. But many people who support Austin and/or Turner would describe the law differently than she did--including Stevens in his Citizens dissent, and Turner in its majority, and scholars like C. Edwin Baker (also here), Jack Balkin, Yochai Benkler, and others.

More (plus insightful links in situ) : http://www.huffingtonpost.com/marvin-ammori/does-elena-kagan-disagree_b_569351.html

[NJmaverick]

1. Kagan FOUGHT AGAINST THE CITIZENS UNITED CASE which if far

more than her critics can claim.

[depakid]

2. Apparently, you didn't even read the excerpts of the article before you posted

That fact bolsters the analysis.

[NJmaverick]

4. I am not going to read carefully crafted attacks on this woman when I know the FACTS

[depakid]

5. But..but.. I thought you said you knew more law than Glen Greenwald on your other thread?

Surely you can grasp a bit of legal reasoning, explained in lay terms.

:rofl:

-------

[NJmaverick]

6. Greenwald is a joke who thinks the Republican Justices got it right when they hijacked our

constitution for their corporate sponsors, and so do you it seems, I think the rest of us KNOW BETTER.

[depakid]

7. Dude, give it up- you're embarrassing yourself...

I've seen freepers make more cogent arguments than yours, though I'll admit that their tantrums are usually less amusing.

[TheKentuckian]

10. Does that same logic apply to her fighting for indefinite detention and other extreme

Executive powers or does the being an advocate only cut one way?

I'd say one must either completely take or completely give the pluses and minuses of positions taken as Solicitor General, or at least be really prepared to explain the picking and choosing.

I think other than the vigor and relative strengths of her arguments can really be evaluated from he Solicitor General posting, not the positions themselves, otherwise she must be seen as a pretty sorry choice from the perspective of a civil libertarian despite remaining among the sane and arguing against Citizens United (which is a pretty lackluster and far gone dividing line to discern how willing one is to curtail corporate influence).

There is very little record to go on one way or the other especially in the areas of corporate power and regulation, civil liberties, and Executive power that going forward are going to be the kind of decisions that will really determine what kind of people we will be and what kind of society the next generation will inherit.

I think Kagan is generally very qualified but anybody that thinks they have a handle on what kinds of decisions she will make is either personally knowledgeable of her or probably lying.

The only way you don't have questions about where she is in a number of area is that you have decided what she believes and how it will guide her decisions between your own two ears or you have elected to take to heart her arguments as Solicitor General and if you do that then you have to take the poop along with the diaper.

Why deny this is a public blind pick and that your faith will largely be determined by how much one trust Obama on Executive power, corporate influence, and civil liberties? If one doesn't have a high level of confidence in these areas then it would be a no brainer that Kagan will draw some red flags since she is nearly a blank slate from the perspective of opinions and judicial orientation?

[depakid]

3. Gotta love the unrecs for an unbiased piece of legal reasoning- seems to me that's quite telling

[babylonsister]

8. Why Kagan Makes Sense: Citizens United

Why Kagan Makes Sense: Citizens United

http://www.dailykos.com/story/2010/5/10/865113/-Why-Kagan-Makes-Sense:Citizens-United

[amandabeech]

9. Thanks for posting this article.

I used to practice law, so I had to find that dusty corner of my mind that was corrupted in law school to read the piece.

It is very troubling. She sounds like a corporate tool, which is the last thing we need on the court.

[ProSense]

11. "Looking at Elena Kagan's scholarship, I doubt she agrees with Barack Obama and Justice Stevens...

who dissented in Citizens United, and suspect she is a defender of corporate speech rights."

It's amazing that someone can speculate that Kagan, who argued against Citizens United, is secretly for corporate speech, especially when there is no evidence whatsoever in her writing or background to support that assumption.

Elana Kagan's Scholarship

Mark Tushnet

I'm glad the my friend Marvin Ammori has started a conversation about the merits of Elana Kagan's scholarship, rather than simply commenting on its quantity. I disagree with his interpretation of the article he discusses, and want to add something about her (in my view) quite spectacularly brilliant article on "Presidential Administration." (Disclosure: Kagan was Dean at Harvard when I joined the faculty; I assume that she played an important part in that decision; and she treated me quite well while we were both on the faculty.)

The First Amendment article Marvin analyzes has a form common to law review articles. It takes as a given one prominent decision and asks what its implications are for other problems. Sometimes those other problems will already have arisen, and the article identifies a conflict between the first and the later decision. What is to be done? There are three possibilities: The second case, being inconsistent with the first, should be overruled; the two cases can be reconciled in some way the Court failed to identify; or -- importantly -- the first case, being inconsistent with the first, should be overruled. Many academics think it's reasonable to take the case that everyone treats as the landmark as the fixed point, which is what Kagan's article does. But, as Marvin notes, there's nothing in Kagan's article to tell us whether -- as a judge -- she'd pursue the first rather than the third course. As he also notes, in observing that Kagan argued Citizens United, role matters -- and understanding an academic's role (or more precisely, how specific academics conceive of their role) is essential in using scholarship as a way to make predictive judgments about what she might do in a different role.

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Elena Kagan Is a Progressive on Executive Power

Look closely at what the Supreme Court shortlister has said about presidential authority.

By Walter Dellinger

The public list of 10 lawyers apparently under consideration to be the next Supreme Court nominee has produced a good bit of comparative analysis of their assumed political leanings. Much of the commentary seems to me to exaggerate the differences among this group. A case in point is the critique of Solicitor General Elena Kagan's views on executive power. Glenn Greenwald, whose writing I generally admire, has speculated, for example, that Kagan would move the court "closer to the Bush/Cheney vision of Government and the Thomas/Scalia approach to executive power and law." He also believes that Kagan was silent in the face of presidential abuses of power by the Bush administration.

That is all way off the mark. Let's take Greenwald's second point first. As dean of Harvard Law School, Kagan sharply and publicly criticized the excessive claims of executive authority put forth by Bush administration lawyers such as John Yoo. In an address at her school's graduation ceremony in 2007, she forthrightly condemned "the expedient and unsupported legal opinions" used by Yoo and other lawyers to justify violations of federal laws regulating wiretapping and interrogation. Kagan minced no words in her critique of Bush administration lawyers who "failed to respect the law" or who manipulated, bent, or evaded the law "to seek short-term advantage." She also held up as a model to the graduating students and their families and friends the actions of independent counsel Archibald Cox in standing up to President Nixon. And she praised other lawyers such as Jack Goldsmith, who insisted that President Bush cease the secret wiretapping program because they believed it unlawful.

These views do not come as a surprise if one reads Kagan's 2001 Harvard Law Review article "Presidential Administration." She does not endorse anything remotely like the Bush-Cheney view of broad presidential power to evade laws passed by Congress. (The article was written before Sept. 11 prompted articulation of the Bush-Cheney doctrine.) Greenwald correctly acknowledges that "what Kagan was defending back then in <2001> is light years away from what Bush/Cheney ended up doing, and her defense of Clinton's theories of administrative power was nuanced, complex and explicitly cognizant of the Constitutional issue they might raise." He nonetheless sees her positions on presidential power as leaning in a more conservative direction that the justice she would replace, John Paul Stevens.

I think that's wrong. Kagan's views on the president's power to direct the executive branch are in fact fully consistent with the positions taken by Justice Stevens. Her legal views are based in significant part on two of Stevens' most important opinions for the court, Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. and Hampton v. Mow Sun Wong, decisions about the authority of federal agencies that Kagan rightly reads as encouraging presidential leadership under statutes that give discretion to the executive branch.

more

[jefferson_dem]

12. Nope.

Next question.

[Aramchek]

13. Can't ya feel, can't ya feel that Thunder?? Better run, better take cover

[grantcart]

14. FDL was just on MSNBC and Governor Spitzer said that Kagan's

statements as SG should not be considered personal statements but the statements of an attorney representing her clients.

FDL was asked why she was against the appointment and she responded three times that she didn't know what Kagan's opinion was because it was virtually non existent and on the basis of that she was against her nomination.

She was unable to find a single substantive issue that she disagreed with Kagan on but had 'suspicions'.

Of course a lack of a record is what President's want now that the Senate has become so confrontational on SC picks.

Opposition against Kagan is basically rooted in the principle that Obama has worked with Kagan for a year and knows her personally, they don't want Kagan because they don't trust the President's judgement.

[depakid]

15. This was a substantive piece analyzing her position on the salient cases. Did you read it?

Frankly, I prefer objective analysis like this- which takes a critical look at her own writings, to speculation and conjecture by one individual or another.

Now, obviously some here haven't developed enough intellectual capacity to read and understand the piece, but you're not one of those people.

This is ain't Derrida and lit crit- it's fairly straightforward and well structured legal reasoning.

To me, it raises a question (if not a red flag) as to how she'd rule on matters related to corporate speech once she became a justice. Seeing as how that's going to affect every election in the states from the Presidency down to dog catcher in the coming years- one would think it would pique more than a little interest.