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Why Obama Chose Kagan

The nomination is all about his progressive agenda.

May 24, 2010, Vol. 15, No. 34 • By TERRY EASTLAND
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In January, in Citizens United v. Federal Election Commission, the Supreme Court held that under the First Amendment Congress may not limit corporate and union funding of independent political broadcasts in candidate elections. The Court overturned one of its own rulings and a provision of the McCain-Feingold legislation enacted in 2002. The decision has drawn impassioned and frequent rebukes from President Obama, who said the day it came down that it would empower “special interests and their lobbyists” at the expense of “average Americans who make small contributions to support their preferred candidates.” He criticized Citizens United during his State of the Union speech, with most of the justices in attendance, and, when John Paul Stevens, who wrote a lengthy dissent in Citizens United, announced his retirement, Obama cited it as the kind of decision he didn’t want the next justice to support.  

Why Obama Chose Kagan

Last week, introducing solicitor general Elena Kagan as his choice to replace Stevens, Obama again brought up Citizens United. He mentioned it as evidence that Kagan was on the side of average Americans. “She defended bipartisan campaign finance reform against special interests seeking to spend unlimited money to influence our elections,” he said. Her work on the case, Obama went on, “says a great deal about her commitment to protect our fundamental rights, because in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens.”

What’s most striking about the Kagan nomination is the extent to which it is about Obama. It’s no secret that he sees the Supreme Court’s conservative majority as a potential obstacle to his agenda. Health care reform is already being litigated in federal and state courts. Other key Obama initiatives—environmental and financial regulations, for instance—are likely to wind up in court. Citizens United, Obama believes, gives him a chance to make the case that it is the conservative justices who are the real judicial activists and whom the country should truly beware. Obama, according to the New York Times, “plans to make the [decision] a theme on the stump heading into campaign season.” Obama has proven willing to politicize the Court as no president since Franklin Roosevelt. 

But surely there are Republicans on the Senate Judiciary Committee prepared to challenge the president by standing up for a fundamental liberty. Recall that Citizens United, a conservative nonprofit, wanted to distribute a political documentary about then-Senator Hillary Clinton, a candidate in the Democratic primaries. The Court might have ruled narrowly for Citizens United but for the concession by the government’s lawyer that campaign finance law as it had evolved through McCain-Feingold could be constitutionally enforced to ban a book with the same point of view as the video. 

A few months later the Court asked the parties to re-argue the case along broader lines. Obviously there were justices who sensed something was wrong with a system that could so limit political speech. During the re-argument, Kagan assured the justices that the government had never sought to ban a book. But she left no doubt that in the government’s view it had the authority under the law to ban books if necessary. The Court felt compelled to enforce the First Amendment, with Anthony Kennedy writing the majority opinion: 

When government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves. 

The effort to restrict political spending began with the Progressives, who also were impatient with the Constitution’s limits on government power. Obama regards himself as their political descendant, so it’s not surprising either that he opposes Citizens United or seeks to expand the reach and influence of an already outsized government. 

Obama made clear in nominating Kagan that he expects a justice who will advance his progressive political agenda. Senate Republicans would be remiss if they failed to understand his intention and articulate to the country the constitutional issues at stake. 

—Terry Eastland 


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