- The Washington Times - Tuesday, May 25, 2010

ANALYSIS/OPINION:

When Solicitor General Elena Kagan’s nomination to the Supreme Court reaches crunch time, it is the few remaining Senate Democrats who claim to be moderates that should face the most serious pressure. If they vote for Ms. Kagan, they will have to explain why they support her government-centric view of American life, and her judge-centric view of government power.

Ms. Kagan’s cultural attitudes appear to be well to the left of the average American, so if she aggregates more power to judges, she almost certainly would use those powers for left-liberal social ends. In short, a vote for Ms. Kagan would be a vote against moderation and in favor of liberal social action. It should not be an easy vote to cast.

As noted repeatedly since President Obama announced her nomination, Ms. Kagan has a relatively thin public paper trail. What trail does exist leads inexorably to the same place: Government is portrayed as the depository for, and granter of, rights, privileges and even prosperity. Judges, in turn, are positioned as the government’s conscience. The citizenry is little better than a crowd of supplicants. Rather than meting out power in small doses to the government while retaining rights antecedent to any government, the people are put in the position of asking government, through judges, to tell them what rights they do or do not have.

From this ideological perspective, the rights and the power both flow from the government to the people, rather than vice versa. Such appears to be Ms. Kagan’s viewpoint. It is a viewpoint neither shared by most of the public nor supported by American tradition.

Rights treated as ‘favors’

Perhaps the most revealing exposition of Ms. Kagan’s views came in a 49-page essay she wrote in 1992 for the Supreme Court Review, titled “The Changing Face of First Amendment Neutrality.” In this paper, she discussed two “free speech” cases at great length. In one of them, R.A.V. v. St. Paul, the Supreme Court struck down a law in Minnesota that would have banned certain forms of “hate speech,” which she described as a subset of the sorts of “fighting words” that do not enjoy automatic First Amendment protection. “May the government then permit some but not all fighting words?” she asked, “or is it constitutionally constrained from selectively doling out this favor?”

Yes, you read that right. Ms. Kagan was saying that it’s not the citizenry that presumptively enjoys speech rights, but the government that doles out those rights as a “favor.”

This is not a random quote taken out of context. Ms. Kagan’s argument is that in certain circumstances, a “nonsubsidy” by a government is legally indistinguishable from a “penalty.” A government that chooses not to pay for abortion referrals (as in the second case she discusses, Rust v. Sullivan) is, by this logic, restricting the free-speech rights of those who would make the referrals. Never mind that she is perfectly free to make the referrals without using government funds and to do so as loudly and openly as she wants.

“In choosing a stance from which to view government action,” Ms. Kagan wrote, “we instinctively consider how the world looked prior to the action.” Thus: “If the starting point assumes funding for all family-planning services, including abortion referral, then the government decision is a penalty.”

Does Ms. Kagan understand that government funding in America is never the “starting point” nor what she elsewhere calls “the normal or natural state of affairs?” She continually writes of “government discretion” and “government prerogative.” But she is dead wrong about such government pre-eminence. In the United States, the default position is that people pre-exist the government, not the other way around - so the government has no prerogative at all, especially no prerogative to spend taxpayer dollars, unless and until the people approve it.

Governments create, and judges [re]distribute

The Kagan idea of government as the pre-eminent societal entity is an attitude perfectly in keeping with her assertion in a 1996 essay that “corporate wealth derives from privileges bestowed on corporations by the government…. Individual wealth also derives from government action.” As with money, so too with speech rights. In both the 1996 essay and the 1992 article, she spoke of the government being involved in the “redistribution” of speech. Moreover, she argued, in effect, that it is the judiciary that should determine which speech redistribution is acceptable or not. In her brief in a case just decided last week, Ms. Kagan argued that the government, acting ultimately through judges, must do a “categorical balancing of the value of speech against its societal costs.”

In her Oxford University thesis in 1983, the current nominee to the Supreme Court accepted the idea of “supreme judicial authority in a political democracy.” Moreover, “as participants in public life, judges will have opinions, prejudices, values. Perhaps most important, judges will have goals,” she stated. “And because this is so, judges will often try to mold and steer the law in order to promote certain ethical values and achieve certain social ends. Such activity is not necessarily wrong or invalid. The law, after all, is a human instrument - an instrument designed to meet men’s needs.”

Going back to the 1992 essay - in which Ms. Kagan argued that on certain free-speech issues, there is no difference between a government’s subsidy of certain speech and its refusal to ban similar speech - she wrote that “in declining to regulate” certain words, “The government picks up the [social] cost” of the speech. Again, the decision flows from government, which is choosing (in her 1983 words) to “promote certain ethical values.”

Most Americans do not hold such a government-centric view of the legal system and this country. Nor do they wish to let unelected judges be the key deciders on everything. Yet for 27 years, right up until this year, Ms. Kagan has steadily embraced this view. It is a view that puts her “outside the mainstream” of the public, even if not outside the mainstream of liberal academia and the Senate Democratic club. Of course, it’s the public’s mainstream that ought to matter.

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