The quote is from
William F. West, a professor of federal administration at the Bush School of Government and Public Service at Texas A&M, commenting to the Boston Globe
on Obama Supreme Court nominee Elana Kagan shortly after she was nominated to be solicitor general last year. The New York Times’ Charlie Savage explains
how a Kagan nomination could shift the balance of the court on key civil liberties vs. war on terrorism issues.
But Kagan’s pro-government position extends to criminal justice issues, too. In her current position, Kagan and her subordinates have filed amicus briefs and argued the pro-prosecution, pro-law enforcement position in every criminal justice-related case to come before the Supreme Court since Obama took office. In cases where the constitutionality of a federal law was in question, you could argue that because of her position, Kagan was obligated to defend the law whether she agreed with it or not. But her office could at the very least have merely remained silent on cases like Alvarez v. Smith
(a challenge to the Illinois asset forfeiture law, which is much more government-friendly than the federal law), or Alaska, District Attorney’s Office v. Osborne
(arguing that the states should grant post-conviction DNA testing if doing so could show factual innocence).
Kagan’s office also argued against expanding the rights of the accused and wrongly persecuted when a specific federal law wasn’t in question, such as when she argued that prosecutors who manufacture evidence that leads to the conviction of an innocent person should not be subject to lawsuits (Pottawatomie vs. McGhee
), and that the Constitution’s Confrontation Clause doesn’t protect the right to cross examine forensic experts (Melendez-Diaz v. Massachusetts).
Most recently in U.S. v. Stevens
, her office argued in favor of a federal law banning the sale of videos depicting animal cruelty, taking a broadly censorious position that First Amendment rights be balanced with “societal costs.”
That position was rebuked as “preposterous”
in an 8-1 opinion authored by Chief Justice Roberts. Which makes Kagan more pro-censorship than Roberts, Scalia, Kennedy, or Thomas. (She also argued the pro-censorship position in Citizens United
, but while no less troubling, that’s less surprising.)