Elena Kagan by Kevin Macdonald (MAY 2009)

http://www.theoccidentalobserver.net/articles/MacDonald-Kagan.html

Excerpts:

“Kagan’s candidacy raises a number of issues. If nominated and confirmed, there would be three Jewish justices on the Supreme Court — all on the left. Jews are of course always overrepresented among elites — especially on the left, but 33% is high by any standard given that Jews constitute less than 3% of the US population. This is much higher than Jewish representation in the US Senate (13%) and the House of Representatives (~7%). “

“What could we expect from Kagan on the Supreme Court? Kagan has been flagged by conservatives because of an amicus brief she and other law professors wrote seeking to strike down a law that prohibited colleges and universities that ban military recruiting on campus from receiving federal funds. The motive behind the brief signed by Kagan was to protest the military’s policy on homosexuality. Their arguments were rejected 8-0 by the Supreme Court, indicating that even the Court liberals thought it was completely outside the mainstream.”

“This strongly suggests that Kagan would be quite willing to fashion her legal arguments to attain her liberal/left policy goals, and that is exactly what her other writings show. Her 1993 article "Regulation of Hate Speech and Pornography After R.A.V," (60 University of Chicago Law Review 873; available on Lexis/Nexis) indicates someone who is entirely on board with seeking ways to circumscribe free speech in the interests of multicultural virtue: “I take it as a given that we live in a society marred by racial and gender inequality, that certain forms of speech perpetuate and promote this inequality, and that the uncoerced disappearance of such speech would be cause for great elation.” She acknowledges that the Supreme Court is unlikely to alter its stance that speech based on viewpoint is protected by the First Amendment, but she sees that as subject to change with a different majority: The Supreme Court “will not in the foreseeable future” adopt the view that “all governmental efforts to regulate such speech … accord with the Constitution.” But in her view there is nothing to prevent it from doing so. Clearly, she does not see the protection of viewpoint-based speech as a principle worth preserving or set in stone. Rather, she believes that a new majority could rule that “all government efforts to regulate such speech” would be constitutional. All government efforts.”

Kagan’s conclusion shows where her heart is:

“[Efforts to draft restrictions on speech] will not eradicate all pornography or all hate speech from our society, but they can achieve much worth achieving. They, and other new solutions, ought to be debated and tested in a continuing and multi-faceted effort to enhance the rights of minorities and women, while also respecting core principles of the First Amendment.”

“For Kagan, the crusade to restrict speech is motivated by her feminist and leftist political attitudes. Indeed, her 1993 paper was originally presented at a conference titled, “Speech, Equality, and Harm: Feminist Legal Perspectives on Pornography and Hate Propaganda." She sees her job as a legal scholar to find a way to ensure that these goals are achieved while paying lip service to the legal tradition of the First Amendment. Indeed, she sees heavy-handed attempts to restrict free speech, such as the Stanford speech code, as counter-productive because they make “the forces of hatred into defenders of Constitutional liberty” and because they are so unreasonable they invite criticisms of the rest of Stanford’s race and gender policies.”