Opinion: A curious argument for Kagan
This article was originally on a blog post platform and may be missing photos, graphics or links. See About archive blog posts.
Solicitor General Elena Kagan may or may not fulfill President Obama’s commitment to nominate a Supreme Court justice who sees the law ‘not as an intellectual exercise or words on a page, but as it affects the lives of ordinary people.’ But Exhibit A offered by Obama for this proposition was a peculiar one: the fact that Kagan appeared before the Supreme Court in the now-famous Citizens United case to defend a section of the McCain-Feingold campaign finance law ‘against special interests seeking to spend unlimited money to influence our elections.’
Obama added: ‘Despite long odds of success, with most legal analysts believing the government was unlikely to prevail in this case, Elena still chose it as her very first case to argue before the court.’
No kidding. Defending federal statutes is the solicitor general’s job. As for being willing to argue the case herself, it would have been odd if the solicitor general didn’t appear personally in such a high-profile case. Ted Olson, George W. Bush’s conservative solicitor general, defended McCain-Feingold in oral arguments in 2003. (He was for the law before he was against it. As a private lawyer, he represented Citizens United, the conservative group that challenged McCain-Feingold’s ban on ‘electioneering communications’ by corporations.)
Kagan will have the opportunity in her confirmation hearings to say whether she sympathizes with ‘ordinary people,’ and what that might mean for her jurisprudence. But her record as a lawyer for the administration (and Congress) doesn’t shed much light on that question. There’s a reason lawyers are called ‘mouthpieces.’
-- Michael McGough
