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In his personal email to "friend"---that would be me in this case, the President told me he is honored to nominate his Solicitor General and friend Elena Kagan to the US Supreme Court.
He says her choice to make the Citizens United case her first to argue before the Supreme Court as Solicitor General shows that she has a commitment to protect our fundamental rights.
He says she will be a "guiding force" and "a voice we need on the Supreme Court."
But where will she guide us? And what kind of "voice" does the President need on the highest Court in the land?
Kagan has raised her "voice" several times. Let me tell you about a couple of them.
In 2005 she spoke strongly against the military policy of "Don't Ask, Don't Tell" and against whether Congress could withhold funding from universities that discriminate against the military policy. Two years earlier she had written in an email to all the Harvard Law students, regarding the military policy,"This [policy] is a profound wrong---a moral injustice of the first order. And it is a wrong that tears at the fabric of our community, because some of our members cannot, while others can, devote their professional careers to their country."
"Our community?" What does that mean?
Kagan and other Harvard Law professors have actively opposed the federal law, passed in 1993 and signed by President Clinton, that directs Congress to use its constitutional authority "to make rules for the government and regulation of the land and natural forces" to prohibit homosexuals from serving in the military.
Her arguments were rejected by the Supreme Court. Following the Court's decision, she told students she looked forward to the day, "When all our students, regardless of sexual orientation, will be able to serve and defend this country in the armed services."
This is an extraordinary comment in that she certainly is not known to be a big supporter of the military. Nor is Harvard. The University has been very adversarial toward any military presence on campus.
Ironically, it is the homosexual community that has been abuzz the last few days trying to determine whether she is gay---not conservatives or people of faith.
But it is her first US Supreme Court appearance as Solicitor General that the President thinks is so very important. And revealing.
Indeed it is.
She told the Court last September, on behalf of the Obama Administration, that Congress could constitutionally prohibit corporations from engaging in political speech such as publishing pamphlets that advocate the election or defeat of a candidate for federal office.
Her argument was rejected by the Court, with Justice Anthony Kennedy responding, "When government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may or may not hear, it uses censorship to control thought."
Censorship to control thought.
Kennedy wrote in the majority opinion, "This is unlawful. The First Amendment confirms the freedom to think for our selves."
Chief Justice John Roberts took direct aim at Kagan's argument saying, "The Government urges us in this case to uphold a direct prohibition on political speech. It asks us to embrace a theory of the First Amendment that would allow censorship not only of television and radio broadcasts, but of pamphlets, posters, the Internet, and virtually any other medium that corporations and unions might find useful in expressing their views on matters of public concern."
Roberts pointed out that her ideas would even prohibit newspapers from publishing op-ed and editorial columns.
Yesterday, CNS reported on an article she wrote in the University of Chicago Law Review titled, "Private Speech, Public Purpose: The Role of Governmental Motive in the First Amendment Doctrine."
It is an extensive article which essentially points out that she is disagreeing with the Buckley Principle that says, "Government cannot balance between two competing ideas."
Kagan says the government's motives, not its actions, must be primary in a ruling, defining the process as, 'redistribution of speech'."
This is a troubling leap into relativism in ruling on First Amendment cases. It allows government leadership to say they believe one thing (motive) while doing something very different. Recent examples: President Obama has proclaimed his belief in marriage between one man and one woman while taking every opportunity to undermine the very thing he says he believes. The President has also said he wants to work to reduce abortions, while seizing every opportunity to expand and increase the number of abortions.
This is a snapshot of the "voice" the President "needs" on the Supreme Court. And it tells us a great deal about how her "commitment to protect our fundamental rights" would work. This is the "guiding force" the President seeks to help him in "remaking" America.
Be Informed. Be Inspired. Be Involved. Be Vigilant. Be Discerning. Be Prayerful. Be Blessed.
