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GOP Is Exhausting Its Anti-Kagan Talking Points

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This post originally appeared on the Washington Monthly.

Republican critics of Elena Kagan's Supreme Court nomination are still looking for the go-to attack that might prove effective. So far, the search isn't going well.

The first tack was questioning Kagan's lack of judicial experience, but that faded when we learned that more than a third of the court's justices had never been a judge. Detractors moved on to questions about military recruiters at Harvard, but that fizzled upon closer scrutiny. By late in the week, Republicans went after Kagan as someone who may not be independent enough from the White House, but that one fell apart rather quickly, too.

Yesterday, Senate Minority Leader Mitch McConnell (R-Ky.) tried out a fourth line of attack. He argued on "Meet the Press" that Kagan, as part of her Citizens United argument, endorsed book-banning (not like Sarah Palin's book-banning efforts in Alaska, but in a more general sense).

"Solicitor Kagan's office, in the initial hearing, argued that it'd be okay to ban books," McConnell said. "And then when there was a re-hearing, Solicitor Kagan herself, in her first Supreme Court argument, suggested that it might be okay to ban pamphlets. I think that's very troubling."

It's not a bad try, I suppose. It is wrong, though.

The argument that campaign books paid for by corporate funds could be banned was made by a deputy solicitor general five days after Kagan was confirmed. Bossie's group was the plaintiff in Citizens United v. FEC, a Supreme Court case dealing with the constitutionality of the Federal Elections Commission's decision that Citizens United could not air a movie advocating against Hillary Clinton's presidential candidacy if that movie was paid for by federal funds. On March 24, 2009 -- five days after the Senate confirmed Kagan -- the Supreme Court heard oral arguments in the case. Deputy Solicitor General Malcolm Stewart stated during the oral argument that, in addition to a movie, the federal government could "prohibit the publication of [a] book using the corporate treasury funds" if that book ended by saying "vote for X."

When the case was reargued, Kagan specifically argued that federal law had never banned books and likely could not do so. In June 2009, the Supreme Court decided to postpone its decision in Citizens United, asked the litigants to brief additional issues, and ordered the lawyers to reargue the case in September 2009. Kagan argued on behalf of the federal government. She stated that if the government tried to ban books under campaign finance laws, "there would be quite good as-applied challenge" to the law, meaning that the corporation attempting to publish the book would have a good constitutional case that the book couldn't be banned. Kagan later added: "[W]hat we're saying is that there has never been an enforcement action for books. Nobody has ever suggested -- nobody in Congress, nobody in the administrative apparatus has ever suggested that books pose any kind of corruption problem, so I think that there would be a good as-applied challenge with respect to that."

I continue to appreciate the variety of the GOP attacks. Most of the time, after Republican arguments are debunked, conservative voices just keep repeating them anyway. New bogus arguments don't improve the discourse, but they do keep the debate from getting stale.

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