Good morning, Widdershins.  Hearings resume today in the SCOTUS appointment of Solicitor General Elena Kagan.  She is an interesting if rather enigmatic woman in that she has minimal writings and opinions during her twenty year career.  The occasional sharp contradictions in her stated beliefs may become the most interesting part of Ms. Kagan.

Much of Ms. Kagan’s writings concern the First Amendment and the occasional moral dilemmas posed by hate speech, which she  apparently feels is impossible to isolate from constitutional protection.  I say apparently, because in the US vs. Stevens, Solicitor General Kagan claimed that there is no protection for video of animal cruelty.  She suggested that the court consider each First Amendment claim versus any harm caused by such speech; Chief Justice John Roberts stated that this is “startling and dangerous”.  She also brought forth a brief in support of a statue that criminalizes any form of advice to terrorist groups.  This interpretation diminished protections for journalists, human rights groups and academics of all kinds.  SCOTUS has upheld her position, but with admonitions with regard to her First Amendment viewpoints.   Personally, I am concerned with any position, especially on the First Amendment, that falls to the right of John Roberts.

As for her tenure as Dean of Harvard Law, her hirings were predominately of white males.  She was also the first to bring a number of conservatives on board.   The Republicans are deeply concerned regarding her potential for “Judicial activism”, which appears to be based upon her clerking for Thurgood Marshall, who was actually considered to be pretty mainstream back in The Day.  (In fact, most of the cases that Thurgood Marshall argued before SCOTUS, he won.)  My concern is that the Democrats will hold back on their questions and not try to discover who Elena Kagan actually is and what she actually believes, because  the Roberts court requires some balance. 

This is an open thread.