What Citizens United Case Reveals About Kagan

Does she differ with Obama on the case?

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Supreme Court nominee Elena Kagan is very familiar with the controversial Citizens United case: As solicitor general, she argued the government's position in front of the Supreme Court. Some observers are now examining Kagan's approach, as well as her earlier writings on related issues, and wondering if she differs with President Obama on the landmark campaign finance case.

  • Obama Praises Her 'Citizens' Work President Obama said in a statement intended to rally support to Kagan, "During her time in this office, she's repeatedly defended the rights of shareholders and ordinary citizens against unscrupulous corporations. Last year, in the Citizens United case, she defended bipartisan campaign finance reform against special interests seeking to spend unlimited money to influence our elections."
  • ...But She Lost The Washington Post's Ezra Klein puts it really, really plainly. "Kagan argued the Obama administration's case and lost." On this decision, he wrote that it's "not clear to me why I should believe that Kagan is uniquely placed to sway the court."
  • Her Approach Shows She Might Disagree With Obama  Politico's Kenneth Vogel makes the case. "Neither Elena Kagan's oral argument in the case, which the court rejected in its sweeping January decision, nor her limited scholarly writings on the subject, have given supporters of strict campaign finance rules much confidence that she shares their views -- or Obama's -- on the subject."
  • Kagan Probably Wouldn't Vote With 'Citizens'  Yale law professor Bruce Ackerman suspects that, if she had been on the court at the time, "I would be very surprised if she would vote with the majority [on behalf of Citizens United]. She is, on most of these matters, in the mainstream of legal opinion, and I think that decision took a lot of people by surprise. It was quite a striking decision attacking settled practice. But certainly, in this and in many other cases, she hasn't spoken to it. I know her as a person and she is certainly a person with her feet on the ground and who is alive to what I'd call real-world constitutionalism. But I don't think we have a smoking gun."
  • Don't Read Too Much Into Her 'Citizens' Work  The L.A. Times' Michael McGough shrugs, "Defending federal statutes is the solicitor general's job. ... Kagan will have the opportunity in her confirmation hearings to say whether she sympathizes with 'ordinary people,' and what that might mean for her jurisprudence. But her record as a lawyer for the administration (and Congress) doesn't shed much light on that question. There's a reason lawyers are called 'mouthpieces.'"
  • Citizens United Itself Condemns Kagan  The Washington Post's Greg Sargent points out, "Here's an opponent the White House welcomes: The head of Citizens United, the group behind the notorious SCOTUS decision overturning a ban on corporate money in politics, has now condemned the Kagan nomination."
  • 'Which Kagan Are We Getting?'  The Washington Post's Ezra Rodriguez looks at Kagan's record and asks, "So which Kagan are we getting: the warm and fuzzy defender of Obama's 'little guy' or the hard-right ideologue who would have fit right in as a 'loyal Bushie'? The truth: Maybe both, maybe neither. We don't know. At least not yet."
This article is from the archive of our partner The Wire.