Supreme Court Nominee Kagan: Its Fine if The Law Bans Books Because Government Won’t Really Enforce It

June 28, 2010

The nomination hearings for Supreme Court nominee Elena Kagan have started today. Expect endless speeches by senators, but don’t expect senators to ask the interesting questions George Will suggests.

Here is a revealing exchange on free speech and the government’s power to regulate it in which Solicitor General Kagan representing the Obama administration argued in front of the Supreme Court:

Kagan is comfortable defending laws that give government sweeping powers to regulate political speech and her only defense is “but the government has never used the law to ban books”. Asides from the fact that the distinctions she draws between different types of media are becoming increasingly blurred in the age of the internet, why would we want to give the government any power to restrict political speech? The First Amendment’s free speech clause was meant to categorically protect political speech.

Kagan lost the argument in the Citizens United case. The Supreme Court ruled 5 – 4 against the government. Kagan will be replacing John Paul Stevens, one of the four who condoned government restrictions on free speech.

Kagan will most likely be confirmed. Senate Republicans are not united in blocking her confirmation. But the question remains: Why should we continue to condone putting people on the Supreme Court who do not support the basic rights guaranteed in the Constitution?

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