NYT: Elena Kagan’s Moment

Elena Kagan has produced distinguished scholarship on the First Amendment, taking clear positions favoring a broad interpretation of free speech. She opposed bans on flag burning and hate speech, and tried to come up with a framework for deciding when laws unconstitutionally suppress protected speech. In the Clinton White House, as a domestic policy adviser, she was an advocate for responsible positions on campaign finance limits, tobacco regulation and gun restrictions.

Still, she arrives for her Senate hearings Monday as one of the most enigmatic nominees for the Supreme Court in recent memory. It’s not simply that she has kept her writings and opinions to a minimum through two decades of public life; it’s that the contradictions in the thinking she has expressed in public raise as many questions as her silence.

There is nothing wrong with being an unorthodox thinker who defies ideological categories, if indeed that describes Ms. Kagan. But members of the Judiciary Committee from both parties should press her sharply to discern which of her writings represent her true beliefs and which were professional boilerplate, made necessary by the demands of her jobs representing the legal interests of the Clinton and Obama administrations.

Ms. Kagan’s academic writing on the First Amendment brooks little interference with the free speech of citizens, though she clearly understands the moral dilemmas inherent in these debates. In one 1992 law review article, she wrote about the “profound and indisputable harms” caused by the “special evil” of hate speech, and wondered whether it was possible to isolate it from constitutional protection, before deciding it was probably impossible.

http://www.nytimes.com/2010/06/28/opinion/28mon1.html

Its true that she oppsoes flag burning but she's a little wishy washy on hate speech and she's really weak on porn.

Its like just about everything else, a broad (liberal) interpretation today would have been considered a narrow (conservative) one decades ago. Everything has moved to the right.

On free speech she seem sort of moderate to me.

centrist. She hires conservative instructors from the first Bush administration to teach at Harvard and turns it into "the school" for conservative law students. She practices politicization of issues it's best to steer clear of certain cases not because they are right or wrong but because it is bad political policy. A case in point her support of Don Siegelman's conviction. If an angry mob wanted to lynch you she would decide the case on the basis of who was in the mob.