Adam Liptak has a piece in the Times which only muddies further the question as to whether Elena Kagan would defend individuals against corporate "speech" -- as in the Citizens United case.
To be honest, there is no resolution of the issue and it might seem that the Liptak report is more of a pot boiler than genuine assessment. He opens with the irking "...indications ...that her views on government regulation of speech were closer to the Supreme Court’s more conservative justices, like Antonin Scalia, than to Justice John Paul Stevens, whom she hopes to replace," but the question remains unanswered.
Stanford Law dean Kathleen Sullivan notes that "Her articles on free speech showed a strong sense of the importance of civil liberties as a bulwark against ideological orthodoxy — a perspective that will give her ready camaraderie with free speech devotees on the court like Justices Scalia, Kennedy and Thomas.." And Kagan's record on free speech evidently includes the right for George Carlin to use his "seven dirty words" on the airwaves, as well as students' rights to burn the flag. I'd go along with both. When Arlen Specter asked her the other day about Citizens United, she only responded that "'there wasn’t sufficient deference to Congress' in the majority opinion," according to Specter.
How about the man who nominated her?
An advocate’s private views and the positions she takes on behalf of a client in court need not be identical, of course. Ms. Kagan’s adversary in the Citizens United case, Theodore B. Olson, had, for instance, defended the law as solicitor general in 2003.
In announcing Ms. Kagan’s nomination, Mr. Obama said her decision to argue that case against long odds “says a great deal about her commitment to protect our fundamental rights, because in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens.”
President Obama he seems eager to portray her as someone with a "commitment to protect our fundamental rights." But hey! Who are "we"?
