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Elena Kagan Legal Scholarship Online : Articles in University of Chicago Journals (PDFs) : Our Conclusion: Senate Confirmation Process Features Motives of the Senators Rather than the Qualifications of Judges

By Andis Kaulins

At the University of Chicago Law School news article titled Former Professor Elena Kagan Nominated to Supreme Court the top right column of that web page presents links to three scholarly articles by Elena Kagan in University of Chicago Journals (PDFs) from which LawPundit has chosen the short excerpts found below:

1996. Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine, University of Chicago Law Review.

"I contend not that the Court self-consciously constructed First Amendment doctrine to ferret out improper motive, but that for whatever uncertain, complex, and unknowable reasons, the doctrine reads as if it had been so constructed."

1995. Confirmation Messes, Old and New, University of Chicago Law Review (book review).

"We must ... remind ourselves to view the Court as the profoundly important governmental institution that, for good or for ill, it has become and, correlatively, to view the position of Justice as both a seat of power and a public trust."

1993. Regulation of Hate Speech and Pornography After R.A.V, University of Chicago Law Review.

"When the Court establishes a low-value category, such as obscenity, it determines that the harms caused by the covered speech so outweigh its (minuscule) value that regulation of the speech, even if viewpoint discriminatory, will be permitted....

[But] the hard question remains: should the Court accept pornography or hate speech as a low-value category of expression? The currently recognized categories of lowvalue speech seem to share the trait, as Cass Sunstein writes, that they are neither "intended [nor] received as a contribution to social deliberation about some issue."

Kagan's publications show a depth of analysis and a talent for understanding complex issues that are actually quite refreshing. This is a woman of extremely high intelligence who will have little problem with the job of being a Supreme Court Justice, nor will she be a radical judge -- as her approach to the analysis of legal issues is simply too prudent for that.

Kagan's own writings about "motives" also show us how to properly assess partisan criticism of her Supreme Court nomination, i.e. not, "what are the issues raised by the detractors?" -- issues which are a mere smoke screen -- but rather "what are the "motives" of the detractors?"

Indeed, an analysis of the motives of the Senators who will vote on her nomination will give us a much better understanding of the confirmation process than a review of a candidate's qualifications. This in itself is an indictment of the confirmation process as presently conducted as regards Supreme Court Justices. Not the "qualifications" of judges -- but rather, the motives of the Senators -- are on display. It is a political show.

Full post as published by LawPundit on May 16, 2010 (boomark / email).