"Republicans introduced a new argument against Elena Kagan's nomination today, suggesting she believes in banning books," the Hill newspaper reported Sunday, covering Senator Mitch McConnell's appearance on "Meet The Press." (Link via Chris Stirewalt of the Washington Examiner, who led his "Morning Must Reads" dispatch with the Hill article.)
Three points are worth mentioning here. First, it wasn't a "new argument" that was "introduced" Sunday. The New York Sun on Friday published a scathing editorial on the point, which concluded, "Ask any construction worker on an I-beam, any farmer in a field, or grease monkey in a garage, and we'll wager that he or she could do a better job defending the First Amendment than did, for all her illustrious education and magnificent credentials, Ms. Kagan before the high bench."
Second, in her appearance before the Supreme Court, Ms. Kagan wasn't necessarily delivering her own views on the First Amendment and campaign finance law; she was representing her client, the government of the United States, which was defending a law, the Bipartisan Campaign Reform Act of 2002, that had been passed by a Republican-majority Congress and signed into law by President Bush. By this line of reasoning, Theodore Olson would be unfit for the Supreme Court, because as President Bush's solicitor general, he defended the constitutionality of BCRA, also known as McCain-Feingold.
Third, it's a bit much for Republicans, having watched President Bush sign BCRA into law, now to oppose putting Elana Kagan on the court because she defended its constitutionality. It's not just the Supreme Court that has a resposibility to defend the Constitution, after all; the president himself swears an oath to do that. Abandononing constitutional principles as Bush and the Republicans did on BCRA is like abandoning free market principles as they did with TARP and the seizure of Fannie Mae. Once you start heading down that road, it's hard to make principled arguments against others. I'm not here taking a view on whether Ms. Kagan is a good choice for the court or whether she should be confirmed. I've been a fierce opponent of McCain-Feingold and laws of its ilk for more than a decade now, so I agree with Senator McConnell and the Sun editorial that the line of reasoning expressed by Ms. Kagan is alarming. But the alarming thing to me is less Ms. Kagan than the underlying law, whose champions included not only Mr. Bush, who signed it into law, but Senator McCain, who was the 2008 Republican Party presidential nominee.
