Kagen-sure in some cases you can ban books

I am posting this one because it drove a bit of the conversation I had yesterday with Kathryn Jean Lopez from National Review. While arguing Citizens United as Solicitor General, Kagen tried to defend McCain Feingold and it’s limitations on the corporate purchase of political advertising within 30 days of an election. She did not do well.

In fact, not only did she not do well, the Supreme Court sat in utter amazement as she tried to make the case that such a ban would include books and pamphlets as well. But even more amazing is as she is pressed by the Supreme Court she adds that people should not worry anyway because the FEC would never enforce it.


AP at Hot Air says its unfair to slam Kagen for her appearance on this case. As Solicitor she is bound to defend the US Government, even when the laws are flawed, or in this case really, really flawed. Still one can question her argument. When asked if the ban would include books, she could have answered yes, or no, and let it lay. But instead she tells the court not to worry since it would not be enforced. Unreal.

So a woman, who most likely will be sitting on the Supreme Court, is making the case to the Supreme Court that while a law may be over reaching it should still stand because it would never be enforced. And this is the woman who is so smart she will be able to go toe to toe with John Roberts?

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Jim Vicevich

Jim is a veteran broadcaster and conservative/libertarian blogger with more than 25 years experience in TV and radio. Jim's was the long-term host of The Jim Vicevich Show on WTIC 1080 in Hartford from 2004 through 2019. Prior to radio, Jim worked as a business and financial reporter for NBC30 - the NBC owned TV station in Hartford - and as business editor at WFSB-TV in Hartford for 14 years while earning six Emmy nominations and three Telly Awards.


  1. Dimsdale on June 29, 2010 at 4:06 am

    Her argument sounds vaguely familiar:  consider that the anti gun lefties pass law after law, yet don't enforce them, then some issue continues/worsens, and they call for even more gun laws.  The people become apathetic.  At some point though, the lefties will have enough laws that they will suddenly decide to enforce them, effectively destroying our Constitutionally guaranteed rights to own a gun.


    The pattern here is the same: pass law after law, fail to enforce, then pass more laws to cover the laws you aren't enforcing.  Then POOF!, they can ban political free speech, internet blogs, and yes, radio commentaries.


    Is this what they call "mission creep"?


    Given her background and performances though, I don't think Roberts (or any of the other constitutionalists are losing any sleep).

    • chris-os on June 29, 2010 at 10:21 am

      You have adopted a straw-man view of anything that is not part of your own ideology,

      If you do not believe in it, then it's "leftist".

      There are pro and anti-gun people that are conservatives, moderates and progressives, fyi.

    • Dimsdale on June 29, 2010 at 3:21 pm

      The gun law example is clear, demonstrable and predictable.  See also border enforcement and prosecution of illegal aliens.  And the latter is a problem that occurs on both the right and the left, albeit for different reasons, and I say this working with extreme lefties that own guns.  Sure, there are members of both ideologies in the pro- and anti gun camps, but you know where they bulk of the distribution lies.


      Actually, my belief is "if it isn't Constitutional", it is wrong.  And probably leftist.  A "living, breathing Constitution" is actually one that is on life support.

  2. Dimsdale on June 29, 2010 at 4:29 am

    You don't waste time passing laws to prohibit something if you have no intention of ever enforcing it.

  3. Tim-in-Alabama on June 29, 2010 at 5:36 am

    "These are the times that try men's s …" BAM, BAM, BAM. "Open up! Police!"

    • Dimsdale on June 29, 2010 at 5:53 am

      Maybe they will just let us wear little yellow pictures of guns on our jackets when we go out in public.  Make sure you have your papers!

  4. Jeff S on June 29, 2010 at 7:33 am

    They will say anything to get this lifetime appointment.  When this goes through, watch out!!!  Just have to hope that the 4.5 conservative justices stay healthy for the next two and a half years!!!  Don't be surprised if Obama tries to pull an FDR and add justices to get his majority on the court.

  5. chris-os on June 29, 2010 at 10:31 am

    Sessions is trying so hard to catch Elena Kagan at being gay.

    She's trying to catch him being a moron.

    She is winning.

    • Dimsdale on June 29, 2010 at 3:34 pm

      When I look a the libelous attacks on Judge Bork, or the race based attacks on Miguel Estrada, Sessions looks like he is throwing marshmallows at her.  BTW, who the hell cares if she is gay?

  6. weregettinghosed on June 29, 2010 at 11:57 am

    I think that everyone that thinks she is a great addition need not apply to being part of We the People of the united States of America. She does not stand up for or believe in our Constitution as supreme law. Its is our document that protects us from people like Obama and her – along with the rest of the Obama Gang. Do you not believe the the Communist agenda her father lived by did not rub off on her? You can see it in her thoughts and actions. If we want Communists as justices then we really in trouble – we might as well change our name from America to Cuba II.

    Papers please – Guns? You will see them from then on pointed at you! Keep moving on – streets cleared at 8 pm – healthcare? what will that be – Want to travel? forget it

    Now how many want a Communist? We need to push anyone that is not in favor of a free America out of our way – get our America back and then decide what or where these others need to go or be.  Sorry but we have shed enough blood for America's freedom and the freedom of others – it shall not be shed in vain.

  7. chris-os on June 29, 2010 at 12:09 pm

    Can't find anything to attack her on…call her a communist, so typical.

    And, MAYBE, JUST MAYBE she cares about the Constitution… You know, that thing she will swear to uphold.. You know, the reason the other 4 justices should be impeached because they ruled AGAINST it..

    • Dimsdale on June 29, 2010 at 3:37 pm

      "Maybe" is a weasel word.  Maybe she is a communist.  Maybe not.  Maybe we should know for a fact that she cares about the Constitution before she is confirmed.


      Øbama swore to uphold the Constitution and work for the best for the country, and you can see how that is turning out.


      To the current Congress, the Constitution is an obstacle, not a guide.

  8. chris-os on June 29, 2010 at 12:14 pm

    BTW I wonder how many people understand what it means to serve on the Supreme Court?

    A justice is supposed to follow precedence and not make new law like the right wing members of the court did on say, ummm Citizens United.

    Elena Kagan understands that and will make a great judge.

    • Dimsdale on June 29, 2010 at 3:32 pm

      So equal protection is "new law"?  I am more concerned with Kagan's lack of credentials than I am her parentage.  Seriously, was she the best that Øbama could find, or the most liberally acceptable?

  9. djt on June 29, 2010 at 3:50 pm

    these hearings are just a sham on so many levels…

    congress asks how much the candidate will allow their political views to sway their rulings. The candidate swears to uphold the constitution. the candidate becomes a justice and promptly lets their views sway their rulings. It happens all the time, most recently on the gun ruling.  These hearings only serve to give politicians another forum for their blather and more air time for their egos.

    Kagan? She'll be confirmed with ease, not because she's qualified but because of the numbers of voters on each team. But she's replacing someone quite liberal anyhow. There's really going to be no change to the leanings of the SCOTUS. Its as close to a non story as a supreme appointment can get.

    • chris-os on June 30, 2010 at 3:20 am

      "These hearings only serve to give politicians another forum for their blather and more air time for their egos."

      True! But enjoyed seeing her disarm them with her smile and banter.

      How refreshing -what a change from looking at pusses like Alito's.

    • Dimsdale on July 1, 2010 at 10:38 am

      Checked out Ruth Bader Ginsberg lately?  And really, how hard is it to disarm these political tools?  Keep the refreshing, give me someone who respects, defends and can actually read the Constitution.

  10. Dimsdale on June 29, 2010 at 4:23 pm

    Powerlineblog just released what could be a bombshell (http://www.powerlineblog.com/archives/2010/06/026643.php).

    Of course, to the Democrats, it is probably what got her nominated…

  11. David R on June 30, 2010 at 6:30 am

    Just read the powerlineblog piece. Don't they think we can read? If you check out the ACOG's statements on their website you'll see the statement suggested by Kagan was part of the ACOG's policy statement, which was re-affirmed in 2004, long before the 2006 ACOG Friend of the Court Brief. We have an obligation to not add to the confusion. It is a slippery slope that does damage to our country when we pass off mis-information as fact. Liberty needs truth.

    • Dimsdale on July 1, 2010 at 10:58 am

      Then she should have said so, instead of weaseling around.


      The statement of ACOG was a bit weasely itself: "According to the American College of Obstetricians and Gynecologists' (ACOG) amicus brief opposing the Ban, the Act will chill doctors from providing a wide range of procedures used to perform induced abortions or to treat cases of miscarriage and will gravely endanger the health of women in this country."


      So they were looking at this the way gun owners look at gun control legislation: a foot in the door to banning all abortions.  There was no argument that PBAs were medically necessary.


      To wit: former Surgeon General C. Everett Koop and other eminent medical authorities told Congress: "Partial-birth abortion is never medically necessary to protect the mother's health or her future fertility. On the contrary, this procedure can pose a significant threat to both." Also, Jay Sekulow of the Center for Law and Justice said the "so-called health exception" is a false argument aimed at undermining a "law designed to end (a) horrific procedure."

    • David R on July 1, 2010 at 4:30 pm

      Dims: Thanks for providing the quote from Dr. Koop. I have always admired him. The Center for Law and Justice however is a law firm with very strong ideological as opposed to scientific views. Let me add more of what Dr. Koop had said. "Both sides in the controversy need to straighten out their stance.  The pro-life forces have done little to help prevent unwanted pregnancies, even though that is why most abortions are performed.  They have also done little to provide for pregnant women in need. On the other side, the pro-choice forces talk about medical necessity and under-represent abortion's prevalence: each year about 1.5 million babies have been aborted, very few of them for "medical necessity."  The current and necessarily graphic debate about partial-birth abortion should remind all of us that what some call a choice, other call a child." C. Everett Koop was Surgeon General from 1981 to 1989. Many but certainly not all of the ACOG's 51,000 members have a different view. Re. Kagen however: the misinformation presented on the powerlineblog had to do with the accusation that  Ms Kagen somehow created false information. My view is that liberals, conservatives and everyone in the middle need to be fact checked. Liberty needs truth.

    • Dimsdale on July 4, 2010 at 6:50 pm

      But I quoted the "money line": it is an unnecessary procedure.  Abortion enthusiasts are fundamentalists in their own right.

  12. PatRiot on July 2, 2010 at 8:00 am

    Abortion numbers resource

    <a href="http://www.guttmacher.org/datacenter/index.jsp” target=”_blank”>http://www.guttmacher.org/datacenter/index.jsp

    And Dims is onto something.  What percentage of Pro-Life and Pro-Choice budgets are for reducing pregnancies or follow up support?

    Abortion, banning books, overspending, out of control government and big business power grabs all boil down to a lack of 3 things: Respect, responsibility and common sense.


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