Infringing: White House Gives Gray Lady a Black Eye

By Gabe Pressman
|  Friday, May 14, 2010  |  Updated 8:00 PM EDT
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Infringing: White House Gives Gray Lady a Black Eye

AP

President Barack Obama introduces Solicitor General Elena Kagan as his choice for Supreme Court Justice in the East Room of the White House in Washington, Monday May 10, 2010.

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That the White House is trying to manage the approval process for Elena Kagan, President Obama’s nominee for the Supreme Court, is hardly surprising.

But, when the President’s people try to influence what goes on in a New York City classroom, that’s not only surprising----it’s plain stupid. But it’s happened -- and, as one who treasures academic freedom and the First Amendment---I am affronted.

A New York Times reporter wanted to listen in on a class in constitutional law at the Hunter College High School. The class is taught by Ms. Kagan’s brother, Irving Kagan.

Irving Kagan had no problem with the idea, the Times reports -- but the White House didn’t like it.

Joshua Ernest, a White House spokesman, said the White House was “uncomfortable with the idea at this time.”

The President’s people called Hunter and a spokeswoman for the school, Meredith Halpern, said Hunter couldn’t permit the class observation. Originally, Ms. Halpern had described the idea as “great.”

Was this censorship? Was the White House trampling on the freedom of speech rights of the brother of a potential Supreme Court Justice? A Constitutional law scholar himself?

I put the questions to Donna Lieberman, executive director of the New York Civil Liberties Union. Surprisingly, she didn’t think there was any First Amendment issue.

“This,” she said, “is about a political calculation. Nobody is threatening to put anyone in jail. The administration is engaged in a political process. They are trying to limit the public exposure of her family as part of the confirmation process. And that’s their prerogative," said Lieberman.

“In a political atmosphere where there is polarization in Congress, the White House has decided on the best way to get the message out," she added. "And Ms. Kagan and her family agree. Mr. Kagan is entitled to change his mind.”

Looking at it another way, however, is not the White House creating an issue here that might be used by Ms. Kagan’s detractors at the confirmation hearings?

I asked Hank Sheinkopf, a political consultant for the last 30 years -- a man who has handled campaigns involving Bill Clinton, Eliot Spitzer and many others -- how did he feel about this matter?

“If you’re asking whether it’s good for democracy, I’d say no. Democracy functions best when there’s a free exchange of ideas," said Sheinkopf. “The more noise there is in the air the better for democracy.”

As for the Obama administration’s tactics in telling the Times, in effect, that it can’t do a story on Kagan’s brother, Sheinkopf recalled World War II when there was a well publicized slogan: “Loose lips sink ships.”

“What the Obama administration is trying to do is make sure nobody says anything that could hurt this nomination by creating controversy. They want to manage the nomination.”

That seems like a fair assessment. 

But it’s a heck of a way to manage a nomination. If the new justice is supposed to interpret the Constitution and laws of the land for the benefit of the people, how can that be done by trampling on the First Amendment rights of the country’s leading newspaper?

It smells more like arrogance on the part of an inexperienced crew in the White House.

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