RUSH: Let’s move on to Elena Kagan, or get back to her for just a second. Ed Whelan, National Review Online: ‘According to this Wall Street Journal article, during her service as a law clerk to Justice Thurgood Marshall in 1987, Elena Kagan took the position that the Constitution confers so-called ‘positive’ rights to governmental aid, not just ‘negative’ liberties protected against governmental interference or penalty. Specifically, with respect to one certiorari petition she expressed her ‘worry that a majority of this court will agree with Judge Posner that ‘the Constitution is a charter of negative rather than positive liberties.” And with respect to another, she discussed a lower-court ruling that, relying on ‘evolving standards of decency,’ held that the 14th Amendment (in her words) ‘imposes [some] affirmative obligations on state officials,’ and she opined that ‘the holding is correct.’ (By ‘correct,’ she evidently was referring to her best understanding of how the Constitution should be interpreted, not to the Court’s then-prevailing case law.)’
This is important because this negative rights versus positive rights, we brought this up during the campaign. The extremist libs today don’t like the Constitution because they look at it as negative, meaning the Constitution says what government can’t do to you, and they don’t like that. They want a Constitution of positive liberties. I know it sounds convoluted, but what they mean by that is they look at this from the government perspective, not the citizen perspective. They want a Constitution written that says what government can do for people, or in their case, to people. And this argument of theirs has many roots. But we can trace one of these roots to Cass Sunstein, who is now one of Obama’s czars. This is from February 2001, nine years ago. He was a University of Chicago law professor where Obama wasn’t even an adjunct, he was a lecturer. Elena Kagan was a law professor at the University of Chicago as well. Cass Sunstein had this to say about Internet equality nine years ago.
SUNSTEIN: Sites of one point of view agree to provide links to other sites so that if you’re reading a conservative magazine, they would provide a link to a liberal site, and vice-versa, just to make it easy for people to get access to competing views.
RUSH: Stop the tape, recue that. This is net neutrality. This is what the Supreme Court just said, you can’t regulate the Internet. There is no law giving you the right to regulate the Internet. Net neutrality would force Internet providers to provide an equal percentage of, as he’s saying here, conservative versus liberal links in a search engine or what have you. There’s also some financial aspects to it, too, but this goes back to 2001. Net neutrality is the term for this now. But listen to the whole bite again because what you’ll hear here is that the reason guys like Sunstein and Kagan and Obama and the rest want to control the Internet is because sometimes people just don’t know what’s best for our society.
SUNSTEIN: Sites of one point of view agree to provide links to other sites so that if you’re reading a conservative magazine, they would provide a link to a liberal site, and vice-versa, just to make it easy for people to get access to competing views, or maybe a pop-up on your screen that would show an advertisement or maybe even a quick argument for a competing view. The best would be for this to be done voluntarily, but the word ‘voluntary’ is a little complicated and sometimes people don’t do what’s best for our society unless Congress holds hearings or unless the public demands it. And the idea would be to have a legal mandate as the last resort and to make sure it’s as neutral as possible if we have to get there, but to have that as, you know, an ultimate weapon designed to encourage people to do better.
RUSH: That’s nine years ago. That’s Cass Sunstein, who is now an Obama czar, essentially talking about net neutrality, and Kagan agrees. This notion here of, ‘people don’t do what’s best for our society,’ encompasses, as an umbrella, a lot of things, negative versus positive rights. Sunstein is not one of the originators, but one of the roots, there are many originators here in the negative versus positive rights business of the Constitution. Now, here’s Obama and his version of what Sunstein said nine years ago on May 1st in Ann Arbor, University of Michigan commencement ceremony.
OBAMA: If you’re a fan of Glenn Beck or Rush Limbaugh, try reading a few columns on the Huffington Post website. It may make your blood boil, your mind may not be changed, but the practice of listening to opposing views is essential for effective citizenship.
RUSH: And if you don’t do it they’re going to force you to, they’re gonna force you to be exposed. This is predominantly because they can’t win in the free market with their ideas. They can’t win. Look at Newsweek. You know, everybody’s looking at Newsweek, ‘Gee, it’s a horrible, horrible, horrible thing that’s happening.’ Like Jon Meacham, the 39-year-old brainiac, this guy was a rising star, boy wonder, this guy, the plum job, he’s running Newsweek. Now, it’s up for sale, $28 million it’s lost last year. They have had major losses the last two years. They have had remakes, revamps, the one thing that Newsweek forgot was to service its audience. It’s audience was other journalists. Newsweek writers wrote their pieces for TIME Magazine reporters and CNN reporters and MessNBC. It’s incestuous. A little clique, columns such as, ‘We’re all socialists now.’
It’s clear liberals, on their own, cannot succeed in the free market. You look at what’s happened to many traditional media outlets, New York Times, they’re losing money, they’re losing ad revenue and ad pages, ditto Los Angeles Times. TIME Magazine the same, they’re all downsizing, television networks, you name it, particularly the news divisions. Why? They are working against the interests of the American people. They become propagandists for the regime. So the reason Obama, Sunstein, Kagan, all these people want forced neutrality is because you on your own are not reading their garbage. You are bypassing their garbage because you’re not interested in it, because you already know what their garbage is. They don’t like that, so here comes Internet regulation, other media regulation that will force their point of view on whatever media platform you use. That’s where they’re headed, and that’s what Elena Kagan fully supports as well.
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RUSH: Barack Obama also said about me at a joint congressional leaders meeting at the White House shortly after he was immaculated — he told Boehner and the Republicans — ‘Don’t listen to Rush Limbaugh. That’s not how things get done in Washington.’ Cass Sunstein was hired by Elena Kagan for the Harvard Law faculty, and in 2008 she said of Cass Sunstein, ‘Cass Sunstein is the preeminent legal scholar of your time,’ and you just heard the Cass Sunstein audio sound bite about net neutrality and he’s a big pusher of this negative versus positive rights version of the Constitution. I got a quick e-mail. ‘Hey, Dear Maha! So when are we going to have academic neutrality? You know, a pop-up in the classroom when the teacher or professor starts spouting liberal propaganda?’ Excellent, excellent thinking. When are we going to have academic neutrality? They’re not interested in it in the institutions they control. Oh, no. They’re not gonna allow neutrality in the classroom, far from it.
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RUSH: One more thing here Elena Kagan, a great editorial in the Washington Times, it’s one of the best I’ve seen in the Times, they’re usually pretty good. It really cuts to the quick here. ‘Elena Kagan philosophically unfit for the US Supreme Court.’ Our guys are caving all over the place. ‘Well, you know, the Democrats get their choices, the liberals get their choices.’ Yeah, we understand all that, but there’s not gonna be a filibuster. The polling data on this is 39-39. I mean she’s by no means a slam dunk and I don’t know why there is this instinct to just get out of the way and not fight this. Well, I do know why, we’re on different worlds. We’re conservatives; they’re Republicans. And they have fears of what the press is going to say about them. As long as the Democrats keep nominating women or Hispanics or African-Americans, they’re going to be able to shut up every elected Republican official in the country.
‘Would Supreme Court nominee Elena Kagan outlaw ‘Common Sense’? Ms. Kagan’s work on First Amendment free-speech issues suggests she might restrict Thomas Paine, circa 1776, from distributing his famous pamphlet,’ Common Sense. She has said that pamphlets are imminently something that the government can regulate, the speech in pamphlets because it’s political, and she said all this in the aftermath of the Supreme Court decision saying that corporations can participate in elections by making donations. This has thrown the left a big curveball. They’re knocked sideways on this, they’re reeling and they’re trying to fight back on this, and they’re doing it in ways that are very instructive. Just listen to them and they’ll tell us who they are.
She at first said that certain books might be banned. We might have to restrict certain books because of the publication or who pays for them. The government’s the one that has to judge this. She said this before the Supreme Court in oral arguments. John Roberts was stunned, he couldn’t believe what he was hearing, he said, ‘What about pamphlets?’ Well, pamphlets are even better she said, pamphlets, because those things are purely political. Well, Common Sense, Thomas Paine, was a pamphlet. It could well be if you take what Kagan has said on this, you could say that she ‘might outlaw ‘The Federalist Papers’ if Founding Fathers James Madison and Alexander Hamilton refused to say who paid to publish their essays. These views on the First Amendment are troubling enough to raise serious doubts as to whether the Senate should confirm her for the high court.
‘It was President Obama who deliberately put the focus on Ms. Kagan’s First Amendment theories by highlighting her efforts to restrict the ability of corporate entities to engage in political speech. As former Gov. Frank White of Arkansas once put it, the president thus ‘opened a whole box of Pandoras.’ Ms. Kagan’s First Amendment work repeatedly promotes the idea that speech rights are granted by government rather than inherent in the God-given nature of man. In her Supreme Court oral arguments in the corporate-speech case of Citizens United v. FEC, Ms. Kagan hedged on whether government could ban corporate-funded political books. But she did say that ‘a pamphlet would be different. A pamphlet is pretty classic electioneering,’ and thus subject to campaign restrictions. So sorry, Mr. Madison. In the government’s brief in a case called United States v. Stevens, Ms. Kagan elaborated: ‘Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs.’ Whoa, Nellie, who — pray tell — does the balancing? Judges? Bureaucrats? The Almighty President?’ Whoever it is, it will be radical leftists who will determine whether the balancing needs to be done to make sure that societal costs are low.
‘While it isn’t always fair to ascribe personally to solicitors general the positions they argue in court on the government’s behalf, it is fair if the arguments they use in court echo ones they made in private practice. Ms. Kagan’s record suggests her personal views match her solicitor arguments. In a 1996 University of Chicago Law Review article, she argued that speech restrictions are allowable if the government’s ‘motive’ is acceptably nonideological. In dense academic prose, Ms. Kagan openly mused about the merits of ‘redistribution of expression.’ … ‘The question in every case is whether the government may use direct regulation of speech to redress prior imbalances.” That’s what Kagan asks. ‘The simple answer to that question is no. Individuals, not governments, create wealth — and individuals acting in a free market of ideas can use speech to try to redress any perceived imbalances. Ms. Kagan’s apparent view to the contrary is disturbing and should be disqualifying.’
Amen. You know, as I say often, I am in the free speech business, and any time I hear anybody come along and suggest that the government needs to regulate it — by the way, the First Amendment, when it was written, really focused on political speech being free. All speech is, but that’s what they focused on. And here’s Kagan and Cass Sunstein and Obama wanting to regulate it, ‘If it hurts somebody’s feelings, Mr. Limbaugh, then they shouldn’t be able to say it, and that’s all Ms. Kagan is saying. The societal cost, we must take into account people’s feelings and if their feelings are hurt then people shouldn’t say things that hurt other people’s feelings. That’s essentially what they’re saying, and it gets even farther than that because the left will say, ‘And anything we don’t want to hear.’ What is political correctness, by the way, if not censorship? Political correctness specifically is the censorship of free speech. It is a very affirmative attempt to suppress speech via intimidation.
Practitioners of political correctness want to frighten people into shutting up. ‘You can’t say that! Why, you can be fired for saying that. You can be fired for thinking that. We can ruin your life for saying that.’ And it all boils down to what liberals don’t want to hear. I don’t know very many conservatives who practice political correctness. Well, they practice it. They don’t believe in it, they don’t advocate it and they didn’t originate it. But make no mistake, political correctness — imagine if the government — if political correctness were not just some sort of societal abnormality, and of course on campus it’s become more than just a societal abnormality. It’s the law of the land on campus and within certain corporations and companies. But it’s all based on fear. Corporations are fearful of what might happen to them if they allow certain things to be said in their name. Universities do not want opposing points of view said at all, stated at all, and so it really is nothing more than an attempt to intimidate people into shutting up. And this is what Elena Kagan and her supporters, Cass Sunstein, Obama, this is what they envision with the government being in charge. 
Imagine the government being in charge nationally of political correctness, extending to every media form, from the Internet to radio to television to your iPod, iPad, iPhone, telephone, cellular phone, what have you. This is what they want. And she believes that there is a constitutional, or ought to be, a constitutional provision for somebody like her or Obama or Cass Sunstein to be the decider in what can and cannot be said. And if something is said, does it cost society so much that we can’t allow it to be said again? This is who they are. This is what they want. This is what happened in the old Soviet Union. People went to their bathrooms where they were pretty sure they weren’t bugged, they went to their bathrooms to tell each other what they really thought. They were afraid to speak out anywhere else. So once again, this administration nominates people to high positions and, in doing so, acknowledges that it is much closer to oppressive totalitarian regimes in our past than to great American traditions and institutions, which have defined our greatness.
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RUSH: Naples, Florida, and Amy. Welcome to the EIB Network. Great to have you here.
CALLER: Great to have the ability to speak with you Rush.
RUSH: Thank you very much.
CALLER: I listen every day when I can, and I remember having you autograph a book for me. So my talk or my feeling today as an ex-New Yorker and someone who went to Hunter College when it was an all-girls’ school, I’m wondering: Why is it that Obama and the administration are not (garbled) selling Kagan’s background and her family and her siblings like they did with Sotomayor? So, to me, if she’s supposed to reflect what America’s all about —
RUSH: Mmm-hmm.
CALLER: — the average person —
RUSH: Mmm-hmm.
CALLER: — which is what they tried to with Sotomayor —
RUSH: Mmm-hmm.
CALLER: — why are they closing all the doors? —
RUSH: Mmm-hmm.
CALLER: — Knowing where she grew up in New York —
RUSH: Mmm-hmm.
CALLER: — knowing what Hunter College was an awful long time ago because I’m in my seventies —
RUSH: Mmm-hmm.
CALLER: — I suspect you will find some really radical, radicalism. Not just a little bit.
RUSH: Oh, there’s no question about it! In her college thesis, Elena Kagan singled out her brother Irving for special thanks because his radicalism helped her to form her own political ideas and views. Now, they were prepared, the New York Times and others. They were going to go in there to his class and they were going to videotape it and report on the things he teaches in there. It’s an American history or political science class, and the White House forbade them from doing it. The White House said, ‘You can’t go in there. We’re not going to let you.’ Everybody said, ‘Why not? You paraded Sotomayor’s family all over the place! What’s wrong with us going in and watching her brother teach his class?’ (interruption)
Well, the regime theoretically can do it if they issue a command and say, ‘No, they can’t go in there,’ and if you tell the school, ‘You keep ’em out,’ and if the school abides by the regime’s wishes, yeah, the regime can do it. Now, legally can the regime tell the press where it can’t go? No. But this press? Yeah. But she is right. Amy here from Naples is right. They don’t want anything known about this brother of hers, Irving Kagan, because apparently it would doom her. It is very rare for a Supreme Court nominee to have his or her family sequestered and unavailable and not part of the story — the ‘rich American story’ — of the nominee. Remember, Sotomayor’s family was all over the place, and her mother? What a great role model her mother was for Sonia Sotomayor! But Irving Kagan? Ah, ah, ah, ah, ah! Parents? Ah, ah, ah, ah, ah! You’re not going there. We don’t know why, but we can assume and be pretty accurate in the process.