Kagan's competency questioned

My own belief is that the right point to make here is her honesty, not her competency. Hotair has this information here. Even though it makes little practical sense to try to spin the Supreme Court, I believe that she was playing to a bigger audience, and that she wanted to spin this case to make the Supreme Court appear more extreme than it was. She must have known that she was very likely to lose this case (it was part of an unusual second hearing) and the handwriting was on the wall.

ORAL ARGUMENT OF ELENA KAGAN

ON BEHALF OF THE APPELLEE GENERAL KAGAN: Mr. Chief Justice and may it please the Court:

I have three very quick points to make about the government position. The first is that this issue has a long history. For over 100 years Congress has made a judgment that corporations must be subject to special rules when they participate in elections and this Court has never questioned that judgment.

Number two -

JUSTICE SCALIA: Wait, wait, wait, wait. We never questioned it, but we never approved it, either. And we gave some really weird interpretations to the Taft-Hartley Act in order to avoid confronting the question.

GENERAL KAGAN: I will repeat what I said, Justice Scalia: For 100 years this Court, faced with many opportunities to do so, left standing the legislation that is at issue in this case — first the contribution limits, then the expenditure limits that came in by way of Taft-Hartley — and then of course in Austin specifically approved those limits.

JUSTICE SCALIA: I don’t understand what you are saying. I mean, we are not a self — self-starting institution here. We only disapprove of something when somebody asks us to. And if there was no occasion for us to approve or disapprove, it proves nothing whatever that we didn’t disapprove it.

GENERAL KAGAN: Well, you are not a self-starting institution. But many litigants brought many cases to you in 1907 and onwards and in each case this Court turns down, declined the opportunity, to invalidate or otherwise interfere with this legislation.

JUSTICE KENNEDY: But that judgment was validated by Buckley’s contribution-expenditure line. And you’re correct if you look at contributions, but this is an expenditure case. And I think that it doesn’t clarify the situation to say that for100 years — to suggest that for 100 years we would have allowed expenditure limitations, which in order to work at all have to have a speaker-based distinction, exemption from media, content-based distinction, time-based distinction. We’ve never allowed that. . . .