Paul Campos, writing over at the “Lawyers Guns & Money” blog has a piece I highly recommend reviewing if you feel at all inclined. While he unearths little more about Kagan’s political beliefs than was revealed in the nomination hearings, he does begin to show us a picture of Kagan’s past that has not received the attention it probably should receive… but who in the mainstream media would we really expect to do this kind of research anyway?  I can’t think of anyone.  Whatever the piece’s weaknesses, I think anyone would agree with me that the piece is certainly compelling journalism.

I found two things particularly interesting about Kagan after reading the piece:  First, her ability to land not just good jobs… but great jobs… is really astonishing.  If you ever doubted the ability of connections to influence your career, you had best rid yourself of that notion immediately.  Second, it surprised me just how deeply Kagan is connected to Washington Elite… both because of her connections to the Clinton administration as well as those she gained as dean at harvard – a position she appeared to be quite unqualified for albeit groomed for it seems.

Campos concludes thusly:

Indeed, Obama’s nomination of Kagan suggests that, for all his talk of “change,” he is himself at heart a comfortable denizen of Establishment America – that place where people with the right sorts of resumes rotate profitably between Wall Street, Washington, and the Ivy League, while praising each other for having “good judgment,” and being “reasonable” and “non-partisan.”

The relative ease with which Elena Kagan is being confirmed to a lifetime appointment on the Supreme Court illustrates the extent to which Establishment America believes that a member of the club in good standing – someone who has gone to the right schools, and gotten the right kinds of jobs, and befriended the right sorts of people – can be counted on to do the right thing, even though her own legal and political views remain largely unknown. Naturally, from the establishment’s perspective, the right thing is to do nothing that might seriously disturb any of the social arrangements that continue to serve its interests so well. And in the end, Obama’s faith in Kagan is most likely based on a well-warranted belief that, as a Supreme Court justice, she will prove to be as acceptable to that establishment as Obama himself.

While this isn’t really that harsh of a critique… It certainly is not praise… and does not indicate to me Kagan will be much more than a dependable liberal vote on the court… which is exactly what Obama wants.

Elections have consequences people… you gotta remember that.

Well, as we heard today, she has a great American story.

And — but there is someone else here, as we just heard, who also has a great American story, and that is Frank Ricci, who is the fireman who sued because he took a promotional test, he and others, and was denied the promotion simply because of his race.

And that’s a case that came to the second circuit court, and Judge Sotomayor summarily dismissed it.

Now, that is important because it tells us a lot about her judicial philosophy. And the fact that, as we heard Judge Jose Contrera, on her court, also a Clinton appointee, was upset by her dismissal of this, and not even being willing to recognize the serious constitutional issues, that tells us that she really is a believer in the racial spoils system.

She is a person who said in a speech that she would hope that a wise Latina woman would come to better conclusions as a judge than a white male.

I mean, imagine if you heard someone say the reverse. He would be run out of town as a racist and a sexist.

And it reflects the president’s idea of empathy in the judicial choice, meaning a person who cares about the standing of a defendant or a plaintiff in a case, meaning if he is rich or poor, black or white, advantaged or not, which should not be something a judge takes into consideration.

via Krauthammer’s Take – NRO Staff – The Corner on National Review Online.

Being the good friend that I am, I thought some illumination was necessary. I proceeded to explain to her that:

What’s wrong with certain books being banned by library staff anyway? Surely even YOU would ban certain books if you were a librarian… for example, I doubt you would get a hustler subscription for your local library…

Librarians MAKE EDITORIAL SELECTIONS TO THEIR BOOK CATALOG ALL THE TIME. That’s why you have any given book in your library is BECAUSE of a conscious choice to PUT IT THERE.

This obviously was not convincing enough for her as she proceeded to say:

What the hell do you mean? Please tell me which power enumerated in the Constitution of the US or in Alaska’s laws give that idiot that right to ban books… I’d love to see Sarah Palin even begin to comprehend a casebook, lmao!!! She can’t handle children’s books in the local library, without getting offended. What a simple minded fool.

Banning books, wanting to teach a non science like creationism in schools, knowing nothing about how the constitution or goverment works, time and time again showing that she thinks she can be the arbiter of values for people who have the right to choose those things for themselves, I consider that i huge fuc**ng issue.

But I guess that’s why I’m a libertarian Joel, I believe in freedom, and people’s right to choose for themselves, and not have some half wit poorly educated blow hard tell me what I can or can’t do.

I’m sure you are getting the picture here; my logic didn’t make a dent. But, being the good friend I am, I concluded I just hadn’t explained it clearly enough:

libraries are not protected by the first amendment you IDOT. People are. Go ahead… explain to me how the constitution prohibits taxpayers from voicing their opinions about how their tax dollars are spent… LIBRARIES do not have first amendment rights!!!!!

Freedom of expression isn’t at issue here. Local communities can decide what they want in their library and what they DON’T want. Why is Palin unable to voice her opinion about what is in her community’s libraries??? Why should HER OPINION about this be stifled? You want to talk about stifling… let’s talk about the assumption SHE CAN’T GIVE HER INPUT. This is Orwellian doublespeak here.

[T]his whole thing is basically an argument that non-religious people are better-suited to decide what we should be learning at our local library than religious people. This is al basically just an attack on Christians and christian beliefs…

This was about as much as I could take. After a few more exchanges of (mostly) personal attacks, I felt my time would be better spent on other things).

However, just yesterday an article appeared in the American Thinker that really drew my attention back to this discussion. The author takes a somewhat different angle on this whole “book banning” issue and, from my point of view, lays it to rest.

Among the many accusations against Sarah Palin was that she banned books. Though debunked, that charge highlights a deeper issue, which is Rule By the Discreet Elite. In this case the Elite is librarians, yet another group credentialed by left-leaning institutions…

When a mayor or parent or just anyone in the community tries to do such a thing, it is called censorship, book-banning or book-burning. When a librarian does it, it is called “selection.”

If a book is removed from a public library, it is not “banned,” it is simply not provided free of charge at taxpayer expense. And if a book is not even removed from the library, but merely taken off its prominent display shelf, it is not banned or censored at all, it is simply not promoted by your local government.

But let’s get back to considering the stocking of public libraries with books. The Library of Congress has about 21 million catalogued books…. That means that just about any library you or your child uses has less than 0.1% of all books in it. Someone must have censored 99.9% of them!

When you choose what books go into a library, you are also choosing what books will not go into that library, since you simply can’t fit them all in. So why are librarians considered the one and only ones who can make such decisions? Concerned citizens can’t. Parents of children who use the school library can’t… That’s censorship. But librarians not only do it, they do it every day. It’s considered their job.

The real question is not which books should be stocked and not stocked at your local library, but who decides.

At the end of the blog fight, my friend tried pinning me with the question: “So is it okay to ban then or not? YES OR NO? Answer the question Joel!!” — to which my response is, well, I think local communities should decide which books to carry and vise-versa. I think that an institution that survives solely by the taxpayer expense should reflect the taxpayer’s values. Libraries SHOULD NOT be used as a tool by which an elite who think they “know better” about what children should be reading to force their ideas and values on to the community as a whole. My friend’s solution to this problem is “don’t fuc***g read [the book]“. While this is certainly a rational solution, it pre-supposes that the book SHOULD be there in the first place! This is a self-contradictory argument and therefore unacceptable. One cannot logically criticize one person for demanding something be pulled while simultaneously demanding it be shelved. It is a clever trick, but in the end, it is no better of an argument. Face it Priscilla, you lost this round!

Based on such an odd move, I can think of only one explanation. It seems this fear-mongering about Bush’s police state is nothing more than a political ploy. They know the program is within constitutional limits, but are trying to scare their base into believing Bush is going to listen in on their phone conversations. They know how effective the wiretapping program is at preventing terrorists activities and know that the consequences of future terrorist activity could be placed squarely on them should they stonewall the bill.

I suppose the Democratic leadership could be so ineffective that they can’t stop anything the Bush administration wants passed–even though they are the majority party in a lame duck presidency, but I’d hate to be accused of thinking that badly of them.

Within days, MediaMatters.org , a liberal, media-watchgroup funded by Hillary Clinton, picked up on those words and picked up this statement and ran with it, claiming that he “called service members who advocate U.S. withdrawal from Iraq phony soldiers.” — an obvious misrepresentation.

Within days, (and without bothering to check his facts) Senate Majority Leader Harry Reid went before the floor of the Senate and called on Limbaugh to apologize for his 2 words.

REID: That’s why Rush Limbaugh’s recent characterization of troops who oppose the war as “phony soldiers” is an outrage. Our troops are fighting and dying to bring to others the freedoms that many take for granted. It is unconscionable that Mr. Limbaugh would criticize them for exercising the fundamental American right to free speech. We call on you to publicly repudiate these comments that call into question their service and sacrifice and ask Mr. Limbaugh to apologize for his comments.

Mr. Reid, who daily makes it is mission to undermine the success of our troops is trying to use the power of his elected office to silence via intimidation a public media figure by selectively pulling two words of a much larger conversation out of context and imposing his own interpretation on them.  He is claiming that Mr. Limbaugh (a host who expresses deep gratitude to every military figure who calls in to his show) is now being unsupportive of the troops because he called soldiers who lie “phony”. How ironic; the man who threatens anyone who challenged his patriotism is now challenging Mr. Limbaugh’s…. patriotism. Quite the double-standard.

And if this were not enough, Mr. Reid sent a letter to the CEO of Clear Channel Communications which calls on him to “publicly repudiate these comments that call into question their service and sacrifice and ask Mr. Limbaugh to apologize for his comments.” I’m sorry, but if this is not Government surpression of free speech, I don’t know what is. He is trying to use political force to frighten a private entity from expressing opinions (which he has to fabricate) that he disagrees with. It is clear that Mr. Reid is reverting to personal attacks on his political opponents in order to divert attention from his shameful record as leader of the Senate. His incredibly low approval rating and his failure to end the Iraq war…despite his own promises that it would end under his leadership… amount to nothing more than a record of incompetence.

Allow me to ask my liberal friends a question. Is this the kind of people you want running our country? Politicians who will slander private citizens for personal interests; politicians who use their coercive power to silence speech they disagree with; politicians on whom facts have so little impact? I hope not. Can you imagine the outrage if BUSH tried to attack Democrats for not supporting the troops? Can you imagine the hell that would ensue? How is it that such acts are acceptable… if coming from the mouths of Democrats and not Republicans? Is this not a horrible double-standard?

The speaker was Larry D. Kramer and he was speaking about his new book, “Popular Constitutionalism“. The basic thrust of his book is that the constitution’s interpretation should be left to the legislative and executive branches–or, at the very least, not so dependent on the unquestionable “final say” of the judicial branch.

In fact, he makes some great points:

1) The Revolutionary War (and, more broadly, the reason for America’s division from Great Britian was actually a dispute about the failure of the British government to uphold the BRITISH constitution–one that guarenteed rights of representation which the colonists were not able to exercise.

2) After having a war fought for the right of self-determination, would the founding fathers suddenly be willing to give up that right to a handful of unaccountable, unelected judges?

3) The Supreme Court was never intended to be the final arbitrar of CONSTITUTIONAL RIGHTS… it was not until Marbury v. Madison that the Supreme court took on this role. On a broader level, the courts were only to be one voice in a loud chorus of voices that debated the constitutionality of laws.

After listening to his speech, I must admit I felt challenged in my “originalist” tendencies. It seems that originalism isn’t necessary a very “originalist” method of constitutional interpretation. Nevertheless, we can’t pretend that ‘populist’ interpretation can co-exist with an entrenched judiciary that still commands absolute fealty when determining constitutionality.

I don’t have hours to touch-up this post and fully develop many of these thoughts… but hey, that’s what the comments section is for!

Our first inquiry is what is meant by the term “Commercial Speech”? The doctrine, as we are familiar with today, originated with Central Hudson v. Public service Commission of New York. The issue in this case was whether the state could constitutionally prohibit Central Hudson (an electric-company) from advertising the use of electricity in an attempt to curb energy usage. Much of the debate in revolved around the economic interests of the state of New York in maintaining the supply of electricity for its citizens. In order to protect supply (and by extension, the interests of the public at large), the city had created a restriction on Hudson’s ability to advertise energy use. The state’s economic interests were considered substantial enough to warrant the suppression of Central Hudson’s First Amendment protections.

The Court broadly defined Commercial Speech as anything that either “proposes a commercial transaction or [was] related solely to the economic interest of the speaker and the speaker’s audience”¬ù. The Court then developed a 4 part test for determining whether commercial speech receives first amendment protection. First, the speech must concern lawful activity and not be misleading. Next, the asserted governmental interest must be substantial. If these tests are met, the court then applies intermediate scrutiny–applied asking whether the governmental interest is directly advanced, and whether it is more extensive than necessary.
The Central Hudson test is, in the broad scope of things, a very modern development in first Amendment Jurisprudence. Early cases such as Chrestensen2 and Pittsburgh Press3 held that purely commercial speech does not get any First Amendment protection. It was not until Bigelow v. Virginia4 that the Supreme Court recognized first Amendment protections for Commercial Speech. In this case, Bigelow, a Virginia Newspaper Editor, was charged with violating a statute that prohibited advertisements aimed at encouraging women to get low-cost abortions. In a complete round-a-bout, the court found that Commercial Speech does not wholly lose its first amendment protection merely because it is Commercial Speech.5
A state cannot foreclose the exercise of constitutional rights by mere labels. Regardless of the particular label asserted by the state–whether it calls speech “commercial” or “commercial advertising” or “solicitation”–a court may not escape the task of assessing the First Amendment interest at stake and weighing it against the public interest allegedly served by the regulation?¢‚Ǩ¬¶ The relationship of speech to the marketplace of products or of services does not make it valueless in the marketplace of ideas.
This is fantastic. In an instant, Commercial Speech was transformed from something worth no more than the product it displayed to an indispensable and invaluable element of Democracy. Unbelievable! What was once considered only “solicitation” is now a public service allowing the marketplace of ideas to function more efficiently.?Ç Finally, What I find particularly interesting about Bigelow is that the larger issues of privacy and abortion, which were certainly on the minds of the Justices at the time (Roe v. Wade was decided just 2 years earlier) might have indirectly affected the development of the Commercial Speech doctrine.6
As one reads the many opinions about this doctrine, I think it is fair to say there is a certain unease with its scope. How does it apply to a business’ political statements? Is it only applicable to point-of-sale speech or does it cover a wider array of speech that simply benefits a company’s economic interests? As corporations have evolved from small town-shops to multinational corporations, it has become harder to support the idea that they speak only with an intent to sell a good or service. Statements on issues such as labor, trade, and health care have nothing necessarily to do with a ?¢‚Ǩ?ìcommercial transaction?¢‚Ǩ¬ù, but rather deal with managerial decisions and public policy issues. As one reads Nike v. McClaskey, it becomes clear that the doctrinal limits of the doctrine are very much in question.
The issue in Nike was whether Nike’s false statements about its labor practices, issues of “public debate”, deserved greater first amendment protection because of their quazi-public nature. Nike was sued under a California Unfair Competition law because of false statements made by Nike in a number of public outlets (including newspaper editorials, press releases, etc.) regarding its labor practices.¬† Nike’s position was that issues of labor practice and working conditions at its factories were issues of public concern and therefore Nike’s speech warranted higher First Amendment protection.?Ç Although the Supreme Court ultimately did no more than dismiss the writ of certiorari, Justice Breyer’s dissent wrestles with the limits of the doctrine.?Ç In addressing the dual nature of Nike’s speech, he found the non-commercial characteristics to be “inextricably intertwined”¬ù with the commercial elements. He noted that the non-commercial elements in question were designed for a “diverse audience” concerning “a matter that is of significant public interest and active controversy.”
What seems to be happening with the Court is a dawning realization that the Commercial Speech Doctrine is too inflexible.?Ç It paints with broad strokes and encompases certain types of political speech that would otherwise be protected. After all, isn’t the large majority of purely political speech centered around economic issues? Why exclude corporations from engaging the American public on matters of public concern??Ç I certainly cannot think of any pressing reason to keep Nike’s opinions from the public sphere, and I think Breyer would agree with me. Whatever the value the doctrine has in regulating commercial transactions, it fails to carry logical, historical, or constitutional weight when applied to political speech by commercial organizations. Businesses are, after all, organized groups of individuals who have similar interests in mind. To prohibit them from speaking on public issues is certainly contrary not only to the purpose of the Amendment’s drafters, but also to contemporary concepts of free society.

I concur with the majority on the issues of spectrum scarcity and licensing. It is clear that the F.C.C. must allocate frequencies if the broadcast media is to exist in the form in which we have become accustomed. The public nature of the airwaves necessitates a licensing scheme in order for the available frequencies to be allocated in a market competing for those frequencies. Furthermore, there is no compelling reason why government licensing of airwaves should be any different than its involvement in many other marketplace where resources are scarce. In fact, were it not for the failure of the private sector to divide up the broadcast spectrum, government regulation would not have been necessary. The right of any party to use the airwaves should be looked at with no more or less favor than the rights of someone to pollute a stream or river; government regulation is needed in both instances in order to allow the most people to have the most access.

In addressing the issues arising from technological advances in distribution and digital compression, the majority correctly reasoned that the mere lack of a current demand for every available frequency neither negates the possibility that those frequencies could be filled nor solves the problem of frequency allocation. Licensing is still required to prevent spectrum “overlap”, regardless of total availability. We are increasingly becoming a media-centric society; to assume that demand will never outpace supply is, in my opinion, shortsighted.

It is after this point that I disagree with the majority’s reasoning, and concur in outcome only. It seems clear that Red Lion does not have a cause of action, given the nature of its broadcast license. I find no reason why, given the F.C.C’s authority to limit spectrum use, it may not also create time limitations on the use of of the spectrums in question. Red Lion’s argument seems to imply that they have a constitutional right to 24 hour control over the content broadcast over their frequency for the duration of their license term. I find no reason to conclude that the license granted by the F.C.C. confers this privilege.

If the broadcast license granted by the F.C.C. granted a complete bundle of rights, then Red Lion would have standing because the government would be forcing them to publish a particular viewpoint. This court held, in Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, that the freedom of the press was bound by 2 things: a sufficient number of readers, and the journalistic integrity of its editors and publishers. Again, in Tornillo, we held that, “The choice of material to go into a newspaper… and treatment of public issues and public official–whether fair or unfair–constitute the exercise of editorial control and judgment.” I see no reason to alter our holdings in either case.

As if we were seemingly unsure of ourselves, we went on to say in Tornillo that the application of the press clause had not yet been fully explored in the context of new media. I can think of no better opportunity to address this dictum and re-affirm the principle of individual editorial autonomy and its applicability to all forms of journalism, both the forms which exist today and those which may exist in the future. A completely free press has been central to the notion of freedom of speech; to hold to the contrary would do great damage to our civic society.

What distinguishes my opinion from that of my fellow justices’ is my distaste for the positive rights they believe exist within the first amendment. The bill of rights are primarily about protecting individuals from the government action, not about guaranteeing any right to be heard or any right to access. Why are the rights of the viewers “paramount”, as the majority seems to suggest? What good are the rights of the audience if the speech they hear is tainted? The first amendment specifically speaks in the negative, “congress shall make no law abridging the freedom of speech”. Does the majority wish us to believe this actually reads, “congress shall ensure viewers can hear all points of view?” This “marketplace of ideas” the majority discusses, is merely the result of thousands of individuals speaking without fear of repercussion–hence the need for negative rights. It is not an end in itself, but a theory of how the public makes decisions. True, it is through the marketplace that society can weigh facts and make the most educated decisions, but it is not the primary objective of the first amendment to create this market. Perhaps this really a moot point, but I think it worth the effort to clarify what I believe the court’s position should be on this issue.

With these principles in mind (and, in spite of them), I would further distinguish my opinion on the grounds that Red Lion has no standing in this case. I do not agree with the majority that spectrum scarcity gives the government any right to require the suppression of editorial decisions, but neither do I agree that the paradigm used by the court to arrive at its conclusion is the most accurate. It seems clear that instead of exercising some editorial control over Red Lion’s programming, the F.C.C is merely requiring that Red Lion broadcast a public message on public time the F.C.C. has reserved for its own use. This in no way compromises Red Lion’s editorial control over stories and topics it chooses to air within the time provided it in its license. As I have stated before, congress, acting through the F.C.C., is not required to allocate frequencies in their entirety. These public broadcasts are therefore not part of Red Lion’s broadcast, despite the content similarities. The fact that this “public” content had some logical relation to the news stories is simply not relevant to the issue of whether Red Lion has the right to control content on public time.

For these reasons I respectfully concur.

“I do believe that Congress should assert itself, though, and make it very clear that there is no previous authority for the president, any president, to go into Iran.”

Shocking. Nancy Pelosi has obviously never read Article II of the United States Constitution where it says, “The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States”. Its not as if there is some difficult question of interpretation here; the commander of the United States military requires no outside authority by which his acts are “authorized”. It is his, and his decision alone whether or not to use military force. Period.

But as if this weren’t enough, the democrats have decided not to defund the Iraqwar–and I realize this is somewhat of a digression.?Ǭ† Being the spineless cowards they are, they have decided to “force a slow end” to the war instead of de-funding it outright.

As described by participants, the goal is crafted to circumvent the biggest political vulnerability of the anti-war movement — the accusation that it is willing to abandon troops in the field. That fear is why many Democrats have remained timid in challenging Bush, even as public support for the president and his Iraq policies have plunged.

So basically, in order to obviate themselves of any responsibility for the negative consequences of leaving Iraq, they will force bush to choose between a failed Iraq and the sacrifice more American troops without any certainty they will be able to finish the job after his term is over. This essentially forces Bush to both impliment the democrat’s policy, and yet still take responsibility for any outcomes that may ensue (which cannot possibly be good). They, of course, would risk too much politically if their decision to pull out of Iraq causes another terrorist attack… so this is the way to wash their hands of any responsibility for their policies. As one of my favorite editors at the Wall Street Journal said in a recent email column,

So the idea is to keep the troops in harm’s way but take all steps possible to prevent them from prevailing, in the hope that the Democrats will benefit politically from American defeat.

It’s sickening… This entire Iraq issue has turned into nothing more than a partisan battle to win political power at home and ruin the presidency of their opponent–all the while letting our men and women die to ensure this end is reached. As Hitchens would say, they’ve fallen off the gutter into the sewer.

____________________________________________
update: the Wall Street Journal Editorial Page
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The motion at issue is plainly dishonest, in that exquisitely Congressional way of trying to have it both ways. (We reprint the text nearby.) The resolution purports to “support” the troops even as it disapproves of their mission. It praises their “bravery,” while opposing the additional forces that both President Bush and General David Petreaus, the new commanding general in Iraq, say are vital to accomplishing that mission. And it claims to want to “protect” the troops even as its practical impact will be to encourage Iraqi insurgents to believe that every roadside bomb brings them closer to their goal.