Litigation

Kagan and Book-Banning: ?Merely Political Theater??

By Peter Hardin

Would Supreme Court nominee Elena Kagan  support federal authority to ban books? Some prominent conservatives have raised that specter, but they’re getting strong pushback now from independent experts.

One of the experts, election law scholar Richard Hasen, calls the book-banning claim “completely spurious” and denounces a “full-on hysteria” that has “blossomed” from isolated comments during Supreme Court arguments of the Citizens United v. Federal Election Commission case.

Sen. Mitch McConnell, the Senate Republican Leader, recently drew on the remarks made by the government in arguing Citizens United to contend that Kagan backs banning books (see Gavel Grab post).  Kagan is U.S. solicitor general.

The issue was discussed in two rounds of high court arguments, first by a deputy solicitor general and later by Kagan, who tried to clarify the government’s position. The independent experts say a close tracking of Kagan’s legal arguments does not support the specter raised by McConnell and others.

Eliza Newlin Carney, a veteran writer about campaign finance regulation, has a column in National Journal headlined, “Bonfire of the Inanities: Conservative Fears of Book Banning Have Little Basis in Reality.”

At reargument of Citizens United in September, Carney writes, “Kagan attempted to clarify that the government is not in the business of banning books. While she acknowledged that ‘on its face’ [a federal] corporate spending ban could hypothetically extend to books, she stressed that the FEC has never imposed such a ban, and that if it did, it would be vulnerable to constitutional challenge.”

Hasen teaches at Loyola Law School Los Angeles. In Slate, he writes a piece entitled “The Big Ban Theory” and gives close scrutiny to the remarks by the deputy solicitor general and later by Kagan. Hasen concludes:

“The book-banning claim against Kagan is completely spurious, based on a distortion of her remarks at a Supreme Court oral argument in the Citizens United case as well as the comments made the same week Kagan started  as solicitor general by Malcolm Stewart, a career deputy solicitor general who argued the case last spring.

“Not only have these isolated comments blossomed into full-on hysteria over Kagan the potential book banner, but they actually have come to obscure the fact that how Kagan herself would vote in campaign finance cases is far from clear.”

Hasen sums up by calling the book-banning notion  “no more than political theater to beat up on the president’s nominee, and on the president by proxy.”

You can find further writing by conservatives about the book-banning issue in an article by Bradley A. Smith in The American Spectator, and in a Washington Post commentary by David N. Bossie, president of Citizens United.

You can learn more about Kagan from Gavel Grab and Justice at Stake’s “Replacing Justice Stevens” page.

Full post as published by The Gavel on May 25, 2010 (boomark / email).