Geof Stone: Conservatives Can Support Kagan

Conservatives Can Support Kagan
Geoffrey Stone
Chicago Tribune
May 10, 2010

I was dean of the University of Chicago Law School in 1991 when Elena Kagan was hired as a young assistant professor. She was smart, tough-minded and intellectually independent. She quickly established herself as a valued colleague and brilliant teacher. Her students raved about her intellect, her analytical rigor and her wit.

In her formative years as a scholar, Kagan wrote a series of illuminating articles about freedom of speech. They were illuminating not only because they shed interesting light on the First Amendment, but also because they reveal a lot about Kagan. In an area rife with ideology, her articles addressed complex and weighty legal questions without even a hint of predisposition.

In one early essay, she addressed the provocative issue of hate speech. After examining the question in a rigorous, lawyerlike manner, she came out in full support of a highly controversial 5-4 decision authored by none other than conservative Justice Antonin Scalia, which held that the government cannot constitutionally ban hate speech. Kagan reached this result even though it was clearly contrary to the liberal orthodoxy at the time.

In these writings, one sees quite clearly the nature and quality of Kagan's mind. Her work is consistently smart, intellectually honest and devoid of any agenda. She is more interested in figuring out a complex legal question than in advancing any cause. Those who assert that Kagan holds views that are outside the "mainstream" of legal thought have no idea what they are talking about. She is a careful legal thinker, and tha