The Marketing of Elena Kagan

Nat Hentoff

Since the 1950s, I’ve been reporting on education from the pre-kindergarten to college and university levels. But I’ve been remiss in not exploring law schools—though I’ve lectured at some of them. I will report on them from now on, however—after sixty-nine of the two hundred law school deans in the country wrote the Senate Judiciary Committee endorsing the Supreme Court nominee, Elena Kagan, because she “excels along all relevant dimensions desired in a Supreme Court Justice” (The Washington Post, June 15).

Among those signing the letter were the deans of Stanford and University of Chicago law schools, as well as Kagan’s successor at Harvard Law School. The letter did not mention that Kagan—speaking before the Court in 1999, defending a federal prohibition of depictions of animal cruelty—said, “Whether given category of speech enjoys First Amendment protection depends upon a categorical balance of the value of speech against societal costs.”

Oddly, James Madison, Louis Brandeis, Thurgood Marshall, William Brennan, and William O. Douglas never took that dependence into account. Last year, speaking before the Court as solicitor general to defend the Obama administration’s case for limiting corporations’ political speech, Kagan said that while books cannot be censored, a pamphlet could be—since pamphlets are “pretty classic electioneering.” Tom Paine was lucky; there was no Supreme Court when his pamphlet Common Sense helped propel the American Revolution.

During her confirmation hearing for solicitor general, Kagan agreed with the president who nominated her that “people suspected of helping to provide material support to Al Qaeda should be subject to battlefield law—including detention without trial—even if they were not captured in a battle zone” (The New York Times, May 10) and even if they were only suspected of this vague crime, without a smidge of due process. Her supporters were quick to remind us that the solicitor general is supposed to reflect the views of the president who hired her. However, in a June 28 editorial, The New York Times warmly supported her. “Confirm Elena Kagan,” it commanded Congress on July 1. But The Times has also reminded her, and us, that “solicitor generals have disagreed or argued with presidents”—if and when their consciences acutely impelled them to. There were no signs of that while Kagan was solicitor general.

Kagan, for a disturbing example, vigorously supported the Roberts Court’s 6–3 decision in the sweeping Holder, Attorney General, et al. v. Humanitarian Law Project. David Cole, the losing attorney, accurately placed that suspension of the First Amendment in history as the Court having “now said that the First Amendment permits Congress to make human-rights-advocacy and peacemaking into a terrorist crime.”

Also lamenting was The New York Times (June 28): Kagan’s (and the Court’s) “interpretation significantly diminished First Amendment protections for journalists, academics and human rights groups.” Is this the same editorial page that would thunder “Confirm Elena Kagan”?

One of Kagan’s positions that startled (and depressed) me was never mentioned in her hours of questioning before the Senate Judiciary Committee—or, with a characteristic exception, in the reams of news and commentary about her appointment. That exception was Harvey Silverglate, a penetratingly knowledgeable constitutional lawyer and a cofounder of FIRE (Foundation for Individual Rights in Education; I’m on its advisory committee). FIRE defends the free speech and other constitutional rights of college students and professors of all points of view, which is more than the American Civil Liberties Union does.

In The Boston Phoenix (April 19), Silverglate told how this new member of the Court—whom even her Republican critic Tom Coburn said “lighted up the room”—defines fundamental due process, the cornerstone of our rule of law and a process she’ll be dealing with often in the years ahead.

Convicted of a 1978 murder, two black Iowa men served twenty-five years behind bars before they found out that the key witnesses’ testimony against them had been coerced (aka beaten) out of them. Also, the prosecution withheld exculpatory evidence against them.

“After the Iowa Supreme Court, in 2003, vacated one man’s conviction and sentenced the other to time already served,” Silverglate continues, “the two men sought damages for violations of their constitutional rights—and for the 25 years of their lives they lost.”

The case went all the way to the Supreme Court on the central question of whether the prosecutors can be held liable for what they did to pervert a fair trial for the accused. In a friend-of-the-court brief, Silverglate reports, Elena Kagan “championed ‘absolute prosecutorial immunity’ and asserted that holding these prosecutors accountable would have ‘untold social costs,’” such as, Silverglate sardonically continues, “immunity for not stopping prosecutors from convicting the innocent?”

In September 2009, during a visit to Harvard Law School, Kagan said that “her ultimate boss is President Obama” (The Phoenix, April 19). In other words, in whatever she did or did not do as solicitor general, she was just representing her boss, and her conscience was suspended. For a series of dramatic examples when other solicitor generals have openly disagreed with their presidents because, as one of them said, “I have to live with myself,” see Silverglate’s “Elena Kagan’s Shaky Record” (The Boston Phoenix, April 16).

What happened to the two innocent black men whom Kagan left behind rather than weaken “absolute prosecutorial immunity”? In that case, Pottawattamie County v. McGhee and Harrington, the prosecutors who failed their duty finally agreed to a twelve-million-dollar settlement on December 30, 2009, and on January 4, the Supreme Court dismissed the case.

Kagan would have left those innocent men in their cells. Opposing her position were the National Association of Criminal Defense Lawyers, the Cato Institute (where I am a senior fellow), and the ACLU. They argued for qualified—not absolute—immunity, which is used when prosecutors violate a clearly established constitutional right. Apparently, the American Bar Association ignored Kagan’s lamentable position in this case when recommending her for the Supreme Court with its highest accolade, “highly qualified.”

Another time when Kagan deferred to her boss’s view of the Constitution was when—as Charlie Savage reported in the May 7 New York Times—“after Mr. Obama selected her to be his solicitor general, she . . . took a leading role on a legal team that has sought to suppress lawsuits using the ‘state secrets’ privilege.” When the boss didn’t want any evidence heard and an entire case shut down, Kagan went dutifully along.

Kagan’s supporters make much of the fact that Justice Marshall chose her to be one of his clerks. Among Justice Marshall’s strongest principles was his conviction that the death penalty was always unconstitutional. During her confirmation hearing for solicitor general, Senator Arlen Specter, in a written question, asked Kagan if “Justice Marshall had it right” in his opposition to the death penalty.

Her answer: “I am fully prepared to argue, consistent with Supreme Court precedents, that the death penalty is constitutional.” There is considerable likelihood that once on the Supreme Court, she will vote for the justice system to continue making terminal mistakes ending human life.

The one Supreme Court Justice I knew, William Brennan, said to me about the death penalty: “I still believe that eventually we will become more civilized and end it. It would be horrible if we didn’t.”

Obviously, Kagan has the right to differ about this nation’s state of civilization, but I am concerned to have on the Court this new justice with her views on another of Justice Brennan’s deep constitutional commitments. When I once asked him to identify his favorite part of the Constitution, he answered: “The First Amendment. All other liberties and rights flow from the freedom to speak up. Its enforcement gives us this society. The other provisions of the Constitution merely embellish it.”

Elena Kagan—on paper and verbally—is not a consistent and persistent advocate of that quintessential right. As I showed at the beginning of this essay, she has higher priorities than the freedom of speech, press, and association. Though Tom Coburn believes “She lights up the room,” she does not light up the Constitution.

Nat Hentoff

Nat Hentoff is a United Media syndicated columnist, a senior fellow at the Cato Institute, and the author of, among other books Living the Bill of Rights (University of California Press, 1999) and The War on the Bill of Rights and the Gathering Resistance (Seven Stories Press, 2004). His latest book is At the Jazz Band Ball: Sixty Years on the Jazz Scene (University of California Press, 2010).


Since the 1950s, I’ve been reporting on education from the pre-kindergarten to college and university levels. But I’ve been remiss in not exploring law schools—though I’ve lectured at some of them. I will report on them from now on, however—after sixty-nine of the two hundred law school deans in the country wrote the Senate Judiciary …

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