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When Elena met Antonin and Anthony

posted at 12:56 pm on May 10, 2010 by Ed Morrissey

Most people who oppose Elena Kagan’s nomination to the Supreme Court will focus on either her defense of Harvard’s attempt to bar military recruiters from the campus or her lack of judicial experience.  However, as HA reader Frank points out, her record as Solicitor General will provide an argument on competence, too.  Kagan didn’t do her homework before arguing the Citizens United case on behalf of the Obama administration and the FEC — which her probably-soon-to-be colleagues on the Supreme Court wasted no time in pointing out.  It came at the very beginning of her oral argument, when one might expect a Solicitor General to attempt to impress the panel with her grasp of law and precedent:

[SNIP] {quote from Gen.Kagan's presentation of the case to the SCOTUS}

In fact, the crux of the case was the issue of limiting expenditures as an expression of political speech, not contributions.  Kagan started off her argument by misconstruing the issue and then offering a factually incorrect reading of precedent.  Both Scalia and Kennedy objected to it before Kagan even had time to get the argument completed, although as the transcript notes, she didn’t pay much attention to them.

Without any judicial experience, Kagan has to rely on her performance at the Court as Solicitor General over a short period of fifteen months — and at best, it’s mixed.

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Now, I have to agree with Mr.Morrissey that it was not the best opening salvo to that case! I hope that was not the sum of it all... or if it was, I can see how that case went down.

In any case, this is going to be interesting to see Judge Elena Kagan enter the SCOTUS that upended election finance reform that she was defending. I wonder what would happen if that case came up again. As the lawyer, she is not exactly an 'interested party' so I dont think she would be required to recuse herself - I may be wrong on this. But that would certainly be interesting. It would be great if that case law got reversed.

-- Edited by Sanders on Monday 10th of May 2010 09:22:05 PM