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With the debate raging about whether Supreme Court Justice Elana Kagan should recuse herself from any hearing on President Obama’s health-care legislation, a closer look at Kagan’s academic writings and previous work history paints a picture of a woman who strongly supports court intervention.
Prior to her top court position, Kagan served as U.S. solicitor under Obama, where her possible advocacy for the president’s centerpiece health-care legislation has come into question.
A former clerk to Abner Mikva at the D.C. federal appeals court, Kagan was also heavily involved in promoting the health-care policy of the Clinton administration, which served as the foundation for what would become Obamacare.
WND previously reviewed Kagan’s sparse academic writings – she penned just nine articles, two of which are book reviews.
Kagan shows strong beliefs for court intervention in speech, going so far as to assert free speech should be weighed against “societal costs.” She has also advocated silencing some kinds of speech, stating, for example, speech that promotes “racial or gender inequality” could be “disappeared.”
In her 1993 article “Regulation of Hate Speech and Pornography After R.A.V” for the University of Chicago Law Review, Kagan writes: “I take it as a given that we live in a society marred by racial and gender inequality, that certain forms of speech perpetuate and promote this inequality and that the uncoerced disappearance of such speech would be cause for great elation.”
Also in a 1996 paper, “Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine,” Kagan argued it may be proper to suppress speech because it is offensive to society or to the government.
The paper asserted First Amendment doctrine is comprised of “motives and … actions infested with them,” and she goes so far as to claim, “First Amendment law is best understood and most readily explained as a kind of motive-hunting.”
Kagan’s name was also on a brief, United States v. Stevens, dug up by the Washington Examiner, stating: “Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs.”
As WND reported, Kagan has advocated for an increased presidential role in regulation, which, she conceded, would make such affairs more and more an extension of the president’s own policy and political agenda.
It was Kagan who hired radical regulatory czar Cass Sunstein as a Harvard law professor. Sunstein, like Kagan, has advocated extraordinary restrictions on speech and expressed extreme views on other topics.
In February 2008, Kagan, as dean of Harvard Law School, announced the arrival at Harvard of Sunstein, then a longtime University of Chicago scholar. Kagan called Sunstein “the preeminent legal scholar of our time.”
WND previously reported Sunstein drew up a “First Amendment New Deal” – a new “Fairness Doctrine” that would include the establishment of a panel of “nonpartisan experts” to ensure “diversity of view” on the airwaves.
WND also reported that in a recently released book, “On Rumors,” Sunstein argued websites should be obliged to remove “false rumors,” while libel laws should be altered to make it easier to sue for spreading such “rumors.”
In the 2009 book, Sunstein cited as a primary example of “absurd” and “hateful” remarks, reports by “right-wing websites” alleging an association between President Obama and former Weather Underground terrorist William Ayers.
Sunstein also singled out radio talker Sean Hannity for “attacking” Obama regarding the president’s “alleged associations.”
In a lengthy academic paper, Sunstein, argued the U.S. government should ban “conspiracy theorizing,” WND reported. Among the examples of speech that should be banned, Sustein offered, is advocating that the theory of global warming is a deliberate fraud.
Sunstein also recommended the government send agents to infiltrate “extremists who supply conspiracy theories” and disrupt the efforts of the “extremists” to propagate their theories.
Meanwhile, Kagan’s early writing have also come under scrutiny. WND has reported that in her undergraduate thesis at Princeton, Kagan lamented the decline of socialism in the country as “sad” for those who still hope to “change America.”
Kagan’s hero: ‘Most liberal activist judge’ in world
Kagan once called a judge universally regarded as one of the most extreme liberal activist high court justices in history “my judicial hero.”
“He is the judge who has best advanced democracy, human rights, the rule of law and justice,” stated Kagan in September 2006 introductory remarks at a Harvard University award ceremony.
Kagan was referring to Aharon Barak, the retired president of the Supreme Court of Israel, who at the time was receiving the Peter Gruber Foundation 2006 Justice Prize at Harvard.
Barak has been recognized across the political spectrum as one of the most liberal activist judges. Just last week, the Israeli Knesset passed a law restricting the powers of the country’s current Supreme Court for which Barak served as the architect, citing concerns the high court acquired too much power.
Richard Goldstone, a left-leaning South African judge who infamously penned a United Nations report accusing Israel of war crimes, termed Barak “unashamedly what, in U.S. terms, would be regarded as an ‘activist judge.'”
Jerusalem Post columnist Caroline Glick commented that under Barak’s judicial leadership “the country was effectively transformed from a parliamentary democracy governed by law into a judicial tyranny governed by the preferences and prejudices of a fraternity of lawyers that Barak empowered.”
“Barak has presided over the Court for eleven years. As a self-declared ‘judicial-statesman,’ he used his position on the bench to reshape Israeli society and politics in his own image through his ‘constitutional revolution,'” Glick wrote.
Amnon Rubinstein, a liberal Israeli law professor and former Knesset member, stated that “in many respects the Supreme Court under Barak has become an alternate government.”
Continued Rubinstein: “Thus a situation has arisen whereby the Supreme Court may convene and decide on every conceivable issue. … This was a total revolution in the judicial thinking which characterized the Supreme Court of previous generations, and this has given it the reputation of the most activist court in the world, causing both admiration and criticism.”
Barak worked tirelessly to place the judicial branch over the executive and legislative, subjecting even the Israel Defense Forces to judicial scrutiny on matters of self-defense.
For example, he famously ruled numerous times in favor of the Palestinians and against the IDF, which petitioned to construct the country’s security fence on private Palestinian land in areas that had been used by terrorists to infiltrate Israeli population centers.
Barak’s rulings halted the security fence construction and were blamed for scores of terrorist infiltrations from the very areas where Barak had stopped the fence from being built.
Barak also ruled the Israeli Supreme Court had the right to judge the IDF during wartime and that his court could counter military orders.
Barak insisted that “everything is justicible” and enacted legislation arguing judges “cannot be removed by the legislature but only by other judges.”
That argument prompted Richard Posner, a judge on the United States Court of Appeals for the Seventh Circuit and a respected authority on jurisprudence, to remark, “only in Israel … do judges confer the power of abstract review on themselves, without benefit of a constitutional or legislative provision.”
Barak also pushed forth the argument that the “executive and legislative branches are to have no degree of control over the judicial branch.”
Kagan shielded Saudis from 9/11 lawsuit
Kagan, meanwhile, once helped shield Saudi Arabia from lawsuits filed by families of 9/11 victims seeking to target countries and leaders who helped finance al-Qaida.
“I’m very concerned about her views on executive power and her views with respect to the separation of power,” Stephen A. Cozen, the lead attorney in the case for 9/11 victims, told WND last May.
“I believe she must be asked questions about whether or not citizens who are attacked inside the U.S. have the right to file suits domestically against terrorism financiers,” said Cozen, the founder and chairman of Cozen O’Connor, a Philadelphia-based law firm with 24 offices throughout the country.
Cozen recounted to WND an April 2009 meeting he held with Kagan to present the case for his clients – thousands of family members and others affected by the Sept. 11, 2001, attacks who sought damages from the Saudi kingdom, Saudi high commissioners and the country’s rulers.
Cozen’s suit documented evidence the Saudis funneled millions of dollars to al-Qaida prior to the 9/11 attacks and that the kingdom continued to finance terrorism thereafter. He was arguing to bring his case to the Supreme Court after it was dismissed by a lower court and an appeals circuit, which had cited the Foreign Sovereign Immunities Act of 1976 as barring lawsuits against leaders of foreign governments.
Cozen, however, documented how both the Supreme Court and U.S. government briefs allowed for such lawsuits in the past, finding the Immunities Act did not hold in similar cases.
Kagan’s friend-of-the-court brief argued Cozen’s case would interfere with U.S. foreign policy. She urged the Supreme Court not to hear the case.
In her brief, Kagan acknowledged inconsistencies with the lower court rulings and even conceded there were legitimate questions about whether the Immunities Act should apply in Cozen’s case for the 9/11 victims. Still, she sided with the Saudis, who had presented their case directly to Kagan that the terror victims’ lawsuit was harming U.S.-Saudi relations.
The Supreme Court sided with Kagan and refused to hear the case.
Kagan’s brief prompted Sens. Arlen Specter, D-Pa., and Sen. Lindsey Graham, R-S.C., to submit a bill to amend the Foreign Sovereign Immunities Act.
Specter at the time strongly denounced Kagan.
“She wants to coddle the Saudis,” he said.
Kristen Breitweiser, whose husband was killed in the 9/11 attacks, told the Philadelphia Inquirer last year, “I find this reprehensible.”
“One would have hoped that the Obama administration would have taken a different stance than the Bush administration, and you wonder what message this sends to victims of terrorism around the world,” she said.
Cozen, meanwhile, told WND he believes Kagan is “eminently qualified” for the Supreme Court. Still, he said he is concerned about her decision in his case and her views on the separation of powers.