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June 28, 2010

A Supreme (Court) Monday: CLS decision to be announced, Kagan show goes live

Today at 10 am EDT the Supreme Court will announce decisions in the remaining cases for this term, one of which is Christian Legal Society v. Martinez (much background on this blog; start here). At 12:30 pm, the Senate Committee on the Judiciary will begin hearings on the nomination of SG Elena Kagan to be the next Justice.

Kagan2 There is a wealth of material on the web about Elena. SCOTUSblog has produced a series of issue papers about her positions on abortion, DADT, executive authority, and other topics, and also has an archive of media coverage.  You can find her answers to the Senate Committee's questionnaire, plus all of the materials released by the Clinton Library, all of her published writings and speeches, letters regarding the nomination, and all other documents in the public record at the Judiciary Committee website. The best single source imho is this ACLU report on her record and past positions.

Will she have any trouble getting confirmed? I don't think so. Conservatives are still trying to derail it - the Washington Times is opposing her confirmation on the grounds that she is "too political, too leftist, too inexperienced and too disrespectful towards existing law to be confirmed for the U.S. Supreme Court." I think - unless something really surprising comes up - it's a done deal. Elena is witty as well as smart, so some of the exchanges may at least be entertaining if not terribly consequential.

One important issue that may get no attention during the hearings is her position on sexual speech. It's a topic that the ACLU report discusses, but which had found no traction in the media until the last couple of days. Over the weekend, Politico's Josh Gerstein ran a post describing her presentation at an anti-pornography conference at the University of Chicago Law School in 1993, in which she expressed views sympathetic to suppression of sexually explicit speech. The speech led to an article in the issue of the law review based on the conference; however, according to Politico, the oral remarks were more emphatic in her expression of sympathy for a MacKinnon-inspired effort to find ways to curb some expression that currently has First Amendment protection.  As the ACLU report notes, although Kagan's publications reflect adherence to the principle of viewpoint and content neutrality, she (along with many others) apparently regards at least some sexual speech as so low value as to not merit inclusion under that umbrella. NB - Kagan does explicitly reject the kind of legislation that MacKinnon and the late Andrea Dworkin proposed in te 1980's as too censorial to be constitutional.

A lot of feminists (not including me) initially find MacKinnon's views more appealing than dangerous (to women's sexual speech, for example), and then later back off that position. Frankly, I think that this second look experience is why the MacKinnon approach has basically died as a serious idea, certainly within the U.S. I'm hoping that (probably soon-to-be Justice) Kagan will find herself taking a second look as well, if she hasn't already. FWIW, there's a letter supporting her nomination from an organization that she supported while Harvard Law dean - the Hip Hop Entertainment Law Project - that I hope signals at least a bit more openness to a variety of modes of expression.

We will all find out soon enough.


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