The Senate Judiciary Committee is scheduled to vote on Elena Kagan’s nomination to the Supreme Court this week. Barring a truly shocking development, the Senate will vote to confirm her later this summer. Gallup reports that Americans support her confirmation 44 percent to 34 percent. That a plurality of Americans supports her confirmation should not surprise, but this finding by Gallup might:
If confirmed, Kagan would be the first successful nominee in recent years whose nomination was backed by less than a majority of Americans in the final poll before the Senate confirmation vote (or, in the case of Harriet Miers, before her nomination was withdrawn).
Further, only 68 percent of self-identified Democrats supported her confirmation in the poll. I can see several possible explanations for the relative lack of enthusiasm for Kagan, including broad public disaffection with the Obama Administration, the relative lack of media coverage of her nomination, lack of enthusiasm on the Left, or her lack of judicial experience. I am sure there are others. Gallup offers no explanation. The question and results are here.
Allan Leedy says:
Who?
July 18, 2010, 8:14 pmHelen Knowles says:
What seems particularly interesting is the percentage of “no opinion” responses re. the Kagan nomination – for two reasons. First, the same percentage of people have “no opinion” now as they did back in May. Second, when compared to previous nominations, this final, pre-Senate vote poll has generated a really quite high percentage of “no opinion” responses.
July 18, 2010, 8:14 pmZach says:
It saddens me that we are going to have a Supreme Court Justice who has argued that the Federal Government has the authority to ban books. It saddens me more that it isn’t even a big deal.
July 18, 2010, 8:49 pmricky says:
“It saddens me that we are going to have a Supreme Court Justice who has argued that the Federal Government has the authority to ban books.”
What are you talking about? She’s not a Republican. She’s not even Christian!
July 18, 2010, 9:01 pmStrict says:
Zach,
No Supreme Court Justice has argued that. A Solicitor General may have argued such a thing, but not a Supreme Court Justice.
There’s a big difference.
It’s like saying Justice Thomas argued that innocent people should be convicted of crimes. No, he didn’t. But prosecutor Thomas may have indeed argued a case urging conviction of a defendant who turned out to be innocent.
It’s simply not true that the arguments of Solicitor General Kagan are the personal opinions of Kagan or represent what would be the arguments or opinions of Justice Kagan.
July 18, 2010, 9:03 pmZach says:
Your point then is that at Solicitor General, one should argue positions that one finds abhorrent and/or unconstitutional if that is the position of your client? Am I to believe she didn’t actually believe that and arguing to remove my 1st amendment rights was just her doing her job? Should that make me feel better?
July 18, 2010, 9:07 pmSarcastro says:
Kagan wants to ban books! I know this because someone in her office once argued it.
The fact that Kagan herself later walked that position back is just proof she’s a liar!
July 18, 2010, 9:13 pmDisplaced Midwesterner says:
That’s not really an appropriate comparison. It confuses a possibility of the position being wrong (may be innocent) with the actual legitimacy of the goal (here, ban books). More appropriate would be a prosecutor arguing that the government has the authority to punish people it knows are in fact innocent. That said, I don’t think any prosecutor would actually take that position, any more than Kagan actually took the position Zach ascribes to her.
July 18, 2010, 9:16 pmBen P says:
Oh but they have.
Ok, not quite the same thing. But not that far removed either.
and I suppose I can only add that the SG simply isn’t in a position to unilaterally decide what cases the government will and will not defend. If the government opts to not pursue an appeal, it will lose by default. I’m not even sure of the specific details of whatever case Zach is talking about, but there are plenty of situations where the government has a reason for pursuing an appeal even if the position taken is not one that is either popular or what it would otherwise pursue policy wise.
July 18, 2010, 9:38 pmbyomtov says:
It saddens me that we are going to have a Supreme Court Justice who has argued that the Federal Government has the authority to ban books. It saddens me more that it isn’t even a big deal.
No, no. You’re thinking of Bork. He didn’t get confirmed, so rest easy.
July 18, 2010, 9:43 pmZach says:
I was speaking of the Citizens United case. http://bit.ly/cIOc06
July 18, 2010, 9:50 pmAnthony says:
Presumably this is caused by no-one making an issue of the nomination; Kagan has been pretty much absent from the news, and thus people haven’t bothered to form an opinion. I’m surprised that even 78% of people polled have an opinion
July 18, 2010, 9:59 pmDisplaced Midwesterner says:
That quote is from a dissent by Scalia. But even assuming that he’s correct on the law, there is indeed quite a world of difference between the government arguing to uphold a conviction that it thinks is valid, but which others may disagree about, and the government specifically arguing for the power to punish someone that the prosecution believes is innocent. I’ve never seen the latter (here, anyway) and hopefully never will.
July 18, 2010, 10:12 pmAlex S. says:
Considering I’m pretty sure 98% of my acquaintances never saw a moment of testimony or otherwise learned anything about her from a direct source (rather than their preferred opinion page) I’d say that 90% of those 78% who expressed an opinion were pulling it out of their rear ends.
Not to say that they’d have been much more qualified on previous cases but I do know they were more attentive to the Sotomayor, Alito and Roberts confirmation processes.
July 18, 2010, 10:15 pmHouston Lawyer says:
It’s hard for either side to get excited about this nomination. Lefties are not excited, because they are not sure she is on their side. Righties hope she might sometimes be on their side, and know that there could be worse nominees.
Also, the Republicans are not really in any position to do anything about her, because they know that they can’t hold 41 votes together.
July 18, 2010, 10:22 pmSuperSkeptic says:
With regard to Kagan and her belief in the plausibility of book-banning by Congress:
Oh yeah, she really “walked that position back”… (Note: after Ginsburg brought it up when she tried to clock out)
* * *
GENERAL KAGAN: I see my time is up. I don’t –
JUSTICE GINSBURG: May I ask you one question that was highlighted in the prior argument, and that was if Congress could say no TV and radio ads, could it also say no newspaper ads, no campaign biographies? Last time the answer was, yes, Congress could, but it didn’t. Is that — is that still the government’s answer?
GENERAL KAGAN: The government’s answer has changed, Justice Ginsburg.
(Laughter.)
GENERAL KAGAN: It is still true that BCRA 203, which is the only statute involved in this case, does not apply to books or anything other than broadcast; 441b does, on its face, apply to other media. And we took what the Court — what the Court’s — the Court’s own reaction to some of those other hypotheticals very seriously. We went back, we considered the matter carefully, and the government’s view is that although 441b does cover full-length books, that there would be quite good as-applied challenge to any attempt to apply 441b in that context.
And I should say that the FEC has never applied 441b in that context. So for 60 years a book has never been at issue.
JUSTICE SCALIA: What happened to the overbreadth doctrine? I mean, I thought our doctrine in the Fourth Amendment is if you write it too broadly, we are not going to pare it back to the point where it’s constitutional. If it’s overbroad, it’s invalid. What has happened to that.
GENERAL KAGAN: I don’t think that it would be substantially overbroad, Justice Scalia, if I tell you that the FEC has never applied this statute to a book. To say that it doesn’t apply to books is to take off, you know, essentially nothing.
CHIEF JUSTICE ROBERTS: But we don’t put our — we don’t put our First Amendment rights in the hands of FEC bureaucrats; and if you say that you are not going to apply it to a book, what about a pamphlet?
GENERAL KAGAN: I think a — a pamphlet would be different. A pamphlet is pretty classic electioneering, so there is no attempt to say that 441 b only applies to video and not to print. It does –
* * *
So, “full-length books” admittedly can’t be banned. Any other print materials, like pamphlets – sure.
July 18, 2010, 10:37 pmSarcastro says:
Yeah, cause allowing corporations to publish whatever they wanted in favor of a candidate would totally allow for robust regulation of their political spending! Total Fahrenheit 451 time.
July 18, 2010, 11:06 pmJoe says:
So, “full-length books” admittedly can’t be banned. Any other print materials, like pamphlets — sure.
and even there only in a limited context. similarly, copyright law bans publishing certain types of books and if a CIA agent signs an agreement a tell all can be banned. This is why Valerie Plame’s book has lots of redaction.
July 18, 2010, 11:06 pmanonanonanon says:
unlike sotomayor, kagan is a bit of a hothouse flower from the land of the mega-elite. i can see why that doesn’t translate to popular appeal.
July 18, 2010, 11:06 pmSuperSkeptic says:
Yeah “electioneering”. What was that I once heard about “political speech” being important?
I dunno what you’re talking about.
July 18, 2010, 11:15 pmBen P says:
How dare the government defend a law passed by congress!
July 18, 2010, 11:19 pmSarcastro says:
[SuperSkeptic Sorry, I do think I was being unclear.
I was pointing out that were Kagan not to take that position, the exception for material support of political candidates would swallow the rule. If Kagan was going to argue in good fiath for the government's position in Citizens United, she had to allow for the limiting of corporate pamphleteering.
If you thus want to yell and scream that this is so unconstitutional as to be unconscionable to argue for, go wild. But that just means you don't want a liberal on the court, since support of campaign finance regulation is pretty mainstream liberal-ness.
Plus a book banner, in the common viewpoint-based use of the term, she aint. That's really sophistry.]
July 18, 2010, 11:24 pmSuperSkeptic says:
BenP and (mostly) Sarcastro,
If she defended the law in good faith, then she believes that her defense is plausible. Therefore, she believes that it is plausible for the Congress to ban books (at least by the disfavored speakers du jour, such as corporations, for “electioneering” purposes). That to not do this would “swallow the rule” is unfortunate for the rule.
And further, I don’t know what you mean by she’s not a “book-banner, in the common viewpoint-based use of the term”. Do you mean that she wouldn’t ban books (at least “full-length books”) based on the views that they espouse within? If so, then I agree – she’d ban them based on who was writing them. Although, I confess, I don’t see much of a difference.
July 18, 2010, 11:42 pmSuperSkeptic says:
Believe it or not, I never really thought about it like that. As a libertarian, I like a lot of the things liberals do. The problem is that damned Constitution…
July 18, 2010, 11:58 pmSarcastro says:
[SuperSkeptic
To most people, banning books brings up the specter of someone banning a book based on objectionable content, i.e. censoring based on an intolerant post-facto analysis.
What Kagan was putting forth was rather different than that. Perhaps just as bad to you, but to the common person, a rather different kettle of fish.
You have also called just about everyone who disagrees with the Citizens decision tantamount a book banner, at least in the latter sense. And you made a pretty powerful case. However, to do so you made one large assumptions and one large qualifications:
It is far from universally accepted that corporations function as run-of-the-mill speakers. And implying (via du jour) that after corporations, then disfavored individuals seems to jump to an unwarranted conclusion, as the line there is pretty easy to draw.
That is a rather large mitigating factor, as the Supreme Court has long (well, 34 years) held that electioneering does indeed get some extra regulation, despite money being speech.
Therefore for Kagan not to be a book banner, she would have to have refused to defend this case at all, despite exactly that being her job at the time. This does not seem a realistic act from any SG's I've heard about. Doesn't your argument thus prove too much?]
July 18, 2010, 11:59 pmSarcastro says:
[I believe you didn't. And I agree with libertarians on a bunch of stuff too (guns, free exercise, campus speech, hating the nanny state, pot.)]
July 19, 2010, 12:03 amSuperSkeptic says:
Sarcastro,
Three things:
Whether that is far from accepted or not, does not making any judgment of who is a “run-of-the-mill speaker” entail a necessary viewpoint discrimination – or at least a normative judgment of who they should be? You make one class, then you can make others. Which is precisely why you cannot make the first one. I’m not implying that it would jump to individuals necessarily – or at least immediately. You sure can draw a line easily. Then that line can be easily moved when the next un-run-of-the-mill speaker is identified.
Indeed.
Which leads to my third point, in response to your final one: She did have to contend with the fact that the Court accepts such schlock as plausible, which is perhaps a mitigating factor.
Still though, I say she didn’t walk the government’s position back very far at all.
July 19, 2010, 12:43 amSteve says:
I suspect Republican gay-baiting had at least some effect on public opinion.
July 19, 2010, 1:10 amLester Livio says:
The only thing I can say of Elena Kagan is that Diane Wood would have been an even worse choice!
July 19, 2010, 1:12 amCareless says:
You think that a significant portion of the population is even aware of the lesbian allegations, let alone cares?
July 19, 2010, 1:29 amSG says:
It is far from universally accepted that corporations function as run-of-the-mill speakers. And implying (via du jour) that after corporations, then disfavored individuals seems to jump to an unwarranted conclusion, as the line there is pretty easy to draw.
It’s always easy to come up with some rationale as to why the people you don’t like shouldn’t be allowed to speak. It will harm national security, or think of the children, or they have too much money or whatever.
You may have good reasons for whatever line you choose draw, but anyone willing to draw a line can’t claim to be a supporter of free speech.
July 19, 2010, 4:16 amHarvey says:
All scholarly objections to Kagan are simply verbal gymnastics to conceal right-wing extremist male chauvinism, homophobia and anti-Semitism. Stop it.
July 19, 2010, 6:49 amJustin says:
The book-burning accusation is not only dumb because it infers Kagan’s viewpoint from the SG’s office’s viewpoint, it is also dumb because…she doesn’t support book banning in the way anyone traditionally thinks about it. 441b (although not content neutral) is specifically viewpoint neutral. She’s not banning “I have two Mommies” and she’s not banning the Bible.
July 19, 2010, 7:57 amSmooth, like a Rhapsody says:
Considering that in 2 years less than 10% of Americans will even know who she is, I am not sure what the 44%-34% is supposed to tell us.
July 19, 2010, 8:02 amMichael P says:
Can you elaborate on how copyright law “bans” publishing certain types of books? As far as I know, it only introduces liability for unauthorized reproduction of someone else’s work. In your other example, confidential and classified information is protected from unauthorized disclosure under (other) Federal law and by the contract signed as a condition of getting the clearance. Neither of these are restrictions of the same kind as BCRA or other Federal electioneering limits.
July 19, 2010, 8:12 amDJR says:
It seems a pretty easy line to draw that the people entitled to First Amendment protections have to be people. I can’t wait until corporations start asserting their Fifth Amendment right against self-incrimination, or perhaps they will frame it as a right to be free from compelled speech?
July 19, 2010, 8:36 amJohn K says:
Wood would have been a far better choice. But then I think it would be OK every now and again to seat justices who aren’t congenital corporatists or right-wing ex-prosecutors like the Republicans typically nominate or toadying healers or identity-politics icons like the Democrats usually put up for the job.
July 19, 2010, 8:43 amDisplaced Midwesterner says:
They already have and it’s been rejected. Corporations do not have protection against self-incrimination.
July 19, 2010, 8:49 amcommon_sense says:
My copy of the 1st Amend isn’t explicitly limited to people–it is a restriction on Congress. I don’t understand people who continue to argue that it shouldn’t apply to all speech, regardless of the speaker.
July 19, 2010, 9:47 amSCOTUSblog » Monday round-up says:
[...] abortion issued by the American College of Obstetricians and Gynecologists in 1997. At the Volokh Conspiracy, Jonathan Adler discusses a recent Gallup poll indicating that a plurality of respondents supported [...]
July 19, 2010, 9:58 amMark Field says:
Then presumably you’d have no problem if a state banned corporate speech.
July 19, 2010, 10:04 amArthur Kirkland says:
Here are some other books this commie nominee would probably ban:
1) a book by a job-creating pharmaceutical company alerting suffering victims of a medical condition that they should try one of its ingenious private-sector inventions (which the elitist brainiacs in the federal bureaucracy refuse to approve merely because of differing opinions about science, test results and mortality rates)
2) a book by experts at Goldman Sachs (who know more about finance than all the elitist pinheads in the federal government combined) explaining why people need to invest in certain financial products structured and sold by Goldman Sachs
3) a work of fiction by a mentally sketchy child abuse victim (worse, she’s probably insist that the woman be convicted of a crime for daring to write unwholesome fiction!)
P.S. I think Zach understates the degree of danger. If Kagan gets in, there will be more than one book-banner on the Court — don’t forget every one of the Citizens United dissenters! And it was a close vote, which shows just how obvious the danger is!
July 19, 2010, 10:14 amcommon_sense says:
I do think we would have to play fewer word games with the Constitution-weakening it in the process-if states had more freedom to do things like regulate speech. But when every government is prevented from regulating speech, courts have to allow exceptions.
July 19, 2010, 10:14 amORID says:
Ouch for the comparisons to Miers and Bork! At this point I’m simply interested in seeing which GOP members vote for her to come to the floor (“up or down vote”) and then vote against her. I’m convinced this poll data gives them cover to mount a filibuster (although they could “energize the Democrat base”) and it looks like Republicans like the idea of “this is the best we should expect” which is probably correct.
This looks like really weak polling for Democrats as well (compare to Sotomayor). There’s a 10 point gap between Kagan and Sotomayor support, and the GOP position is 4 points off at worst.
July 19, 2010, 10:52 amkrs says:
Based on what “a majority of Americans” know about the Supreme Court, this data point isn’t all that interesting.
July 19, 2010, 10:59 amSuperSkeptic says:
Presumably, you mean before the 14th Amendment… in which case there would still be a problem, just not a federal constitutional problem.
But come on…
July 19, 2010, 12:35 pmAlessandra says:
Barney Frank with a skirt.
July 19, 2010, 1:19 pmMark Field says:
No, I mean now as well. The BoR applies to the states via substantive due process. The relevant clause of the 14th A states only that no person shall be deprived, etc. Corporations aren’t persons in my view, regardless how existing law treats them.
This isn’t the only problem with the “Congress shall make no law” argument to which I was responding. Congress in fact makes many laws which infringe freedom of speech, and the SCOTUS has upheld the vast majority of them.
All of this is really tangential to the merits of Citizens United. I was just being a bit snarky about a bad argument.
July 19, 2010, 1:29 pmSG says:
Mark Field: Then presumably you’d have no problem if a state banned corporate speech.
Given that it’s the “liberal” folks are arguing that Congress can ban (sorry, regulate) corporate speech, the supposed gotcha here completely eludes me. If you’ve got a 1st amendment objection to the regulation of corporate speech, you need to take it up with your ideological allies.
July 19, 2010, 1:30 pmPeter Griffin says:
the OP title sounds like a porno movie.
July 19, 2010, 1:30 pmOwen H. says:
What gets me is how many of the Talking Heads that applaud Citizens United and think it’s great to allow corporations to spend freely on politics also condemn when particular wealthy individuals (not their own, of course) spend money on politics, denouncing it as trying to buy elections. I guess they think only corporations should be allowed to do that. I eagerly await the complaints about unions spending under this decision.
July 19, 2010, 2:43 pmfirst history says:
The whole “book banning” charge (as well as that Congress could mandate how people eat) are canards; the problem lies not with the argument but with the law as written by Congress. Kagan was defending a law that, driven to its logical conclusion, could reach that result. It’s not her fault, blame the Congress and those who wrote the laws. As she pointed out in her hearing:
As SG, she played the game with the hand she was dealt by Congress:
The fault is not in our argument, But in our laws.
July 19, 2010, 3:01 pmJoseph Slater says:
My opinions are often different from those of Houston Lawyer, but isn’t he (I’m guessing he) clearly right in what he says above?
And this is a good point too.
July 19, 2010, 3:02 pmOwen H. says:
I’m pretty sure her point was not that Congress can pass laws mandating how we eat, but rather that it isn’t the Court’s duty to strike down stupid laws, just unconstitutional ones.
July 19, 2010, 3:19 pmSuperSkeptic says:
Aside from the fact that corporations don’t operate themselves, but “persons” act in association under color of corporation, is it (the textual argument commonsense made above) really a bad argument, or is it merely a losing argument? I think there might be a big difference.
July 19, 2010, 4:36 pmMark Field says:
I have it on very good authority that slippery slopes are very dangerous. One day you’re complaining, the next you’re censoring.
Well it’s certainly a losing argument.
I think it’s a bad one in any event. If someone is going to rely on a literalist reading of the 1A, it would be hard to simultaneously deny a literal reading of the 14th.
July 19, 2010, 4:40 pmcommon_sense says:
Mark,
July 19, 2010, 11:19 pmDo you think SDP comes from a literal reading of the 14th Amend?
Monday round-up Internet Related Technologies Monday round-up says:
[...] abortion issued by the American College of Obstetricians and Gynecologists in 1997. At the Volokh Conspiracy, Jonathan Adler discusses a recent Gallup poll indicating that a plurality of respondents supported [...]
July 19, 2010, 11:40 pmMonday round-up | theConstitutional.org says:
[...] abortion issued by the American College of Obstetricians and Gynecologists in 1997. At the Volokh Conspiracy, Jonathan Adler discusses a recent Gallup poll indicating that a plurality of respondents supported [...]
July 20, 2010, 10:05 amMark Field says:
Absolutely not. Which makes it even more problematic to apply a literal interpretation of the 1A to protect corporations from state regulation.
July 20, 2010, 10:13 amSmooth, like a Rhapsody says:
THAT’S what gets you?…
You can not accept that a person could say that John Doe has a constitutional right to do a disreputable thing, and, at the same time call it a disreputable thing?
Let me guess: you thought Bill Brennan was a great Justice.
July 20, 2010, 11:39 amSarcastro says:
Let me guess: you can’t admit anyone you disagree with was a great anything.
July 21, 2010, 12:31 am