Kagan & the First Amendment: excerpts from hearings

Thursday, July 1, 2010

WASHINGTON — Cruising toward confirmation, Supreme Court nominee Elena Kagan completed grueling Senate questioning yesterday, unscathed by Republican challenges on abortion, gays in the military and gun rights while sidestepping partisan debate about GOP-named judges pulling the Court to the right.

Kagan emerged from three days of vetting by the Senate Judiciary Committee much as she had begun, declaring she'd be an independent and impartial judge and denying Republican suggestions that she would be unable to separate her political leanings from her job as a justice.

First Amendment issues were discussed several times during Kagan’s portion of this week’s hearings:

Cameras in the Supreme Court
Sen. Arlen Specter, D-Pa., asked Kagan if cameras should be allowed inside the Supreme Court. She replied: “It means I'd have to get my hair done more often.”

The joke left Specter momentarily flustered as spectators in the hearing room laughed, but he eventually replied, “Let me commend you on that last comment.

“You have shown a really admirable sense of humor,” he said. “We're looking for someone who can moderate the Court, and a little humor would do them a lot of good.”

Kagan later said of allowing cameras in, “It would be a great thing for the Court, and it would be a great thing for the American people.”

Citizens United
Specter asked Kagan whether she thought the Court’s January decision Citizens United v. Federal Election Commission, in which parts of the 2002 federal campaign-finance law were overturned, was “disrespectful” of Congress. Kagan, who as solicitor general was charged with defending the regulations at issue in the case, said she did not feel it was necessary to characterize what the Supreme Court did.

Sen. Orrin Hatch, R-Utah, also questioned Kagan in detail about the case.

Kagan said of advocating for the Obama administration: “I did believe we had a strong case to make. I tried to make it to the best of my ability.”

Specter continued to urge Kagan to state her personal views of the case, but she would not budge.

“It's a little bit difficult to take off the advocate's hat and put on the judge's hat,” she said.

Kagan also said that the 5-4 decision removing campaign-spending limits for corporations and unions was “settled law.”

Libel laws
On June 30, Sen. Amy Klobuchar, D-Minn., asked Kagan questions related to libel law and the landmark 1964 Supreme Court ruling New York Times v. Sullivan.

“I think people should be able to write anything they want about me, and I … won't sue them for libel,” Kagan said with a smile.

Klobuchar asked whether balance was needed regarding some free-speech issues.

“Even as we understand the absolute necessity … for protection of speakers from libel suits, from defamation suits,” Kagan said, “we should also appreciate that people who did nothing to ask for trouble … can be greatly harmed when something goes around the Internet, and everybody believes something false about a person. … That's a real harm, and the legal system should not pretend that it's not.”

(Credit: MSNBC: First Read)

Military recruiting at Harvard
Kagan came under fire from Alabama Sen. Jeff Sessions, the top Republican on the Senate Judiciary Committee, for her decision as dean of Harvard Law to bar military recruiters from using the school's career-services office because of the Pentagon's policy against openly gay soldiers. Sessions said that act amounted to “punishing” the armed services, treating them in a “second-class way” and creating a hostile environment for the military on campus.

Kagan vehemently denied the accusations, stating, “Military recruiters had access to Harvard students every single day I was dean.”

Despite letters from military personnel defending Kagan and her actions as dean at Harvard, many Republican senators insisted she had hampered military-recruiting efforts.

Under questioning by Sessions, Kagan said she was trying to balance Harvard's nondiscrimination policy, which she believed the Pentagon’s “don't ask, don't tell” violated, with a federal law that required schools to give military recruiters equal access as a condition of the schools' eligibility for federal funds. She said she welcomed the military, and believed her policy of requiring recruiters to work through a student veterans group — first set by a predecessor — was a valid compromise.

“We were trying to make sure that military recruiters had full and complete access to our students, but we were also trying to protect our own antidiscrimination policy and to protect the students whom it is … supposed to protect, which in this case were our gay and lesbian students,” Kagan said.

Sessions called Kagan’s version of events “disconnected from reality” and accused her of defying federal law because of her strong opposition to the military's treatment of homosexuals.

“I know what happened at Harvard. I know you were an outspoken leader against the military policy,” Sessions said. “I know you acted without legal authority to reverse Harvard's policy and deny those military equal access to campus until you were threatened by the United States government of loss of federal funds.”

Comcast/NBC Universal merger
Sen. Al Franken, D-Minn., asked Kagan about the state of the media, specifically the proposed merger of Comcast and NBC Universal.

Franken made his opinion clear, saying: “When the same company owns programming and runs the pipes that bring us programming, I think we have a problem. I’m interested in the ways the Supreme Court affects the info that you and I get when you turn on the TV or read the newspaper.”

He continued, “If Comcast and NBC merge, I worry that AT&T and Verizon are going to decide that, well, they have to buy ABC, CBS to compete. And that will mean there will be less independent programming, fewer voices, and a smaller marketplace of ideas. That’s a First Amendment problem. It’s also an anti-trust problem.”

Kagan hesitated to answer, as the Comcast/NBC merger is still under judicial review, but then said: “In general terms, the First Amendment does not provide defense to anti-trust laws.” She added, “The anti-trust laws are the anti-trust laws, and they apply to all companies.”

Franken continued to assert that the First Amendment is relevant concerning anti-trust laws, citing the “Net neutrality” issue and the fact that corporations often control the online means of communication. Kagan acknowledged “First Amendment values” might be at issue, but because she considered the matter to be primarily one related to anti-trust law, she said she “would defer to people who know a lot more about anti-trust policy than I do.”

(Credit: http://www.mediaite.com)