Pugnacious questioner Justice Sonia Sotomayor almost scored a first round knockout against Solicitor General Elena Kagan during today’s argument in the terrorism material support case (Holder v. Humanitarian Law Project, 08-1498). But Kagan survived and managed to land a sucker punch of her own later on.
Kagan, tipped by many as a leading contender to join Sotomayor on the court this summer, was just starting her argument defending the federal material support statute against claims that it violates the First Amendment rights of a Los Angeles group that wants to help Kurds, when Sotomayor struck with a question clearly designed to undermine the government’s position:
Sotomayor: If a terrorist was arrested in the United States from one of these groups, would they be barred under the statute from serving as their attorney in a U.S. court?
Kagan: Justice Sotomayor, if – if there are —
Sotomayor: Isn’t that material support under the definition that you have been advocating?
Kagan: Justice Sotomayor, I believe that that would be excluded from the, statute, should be excluded from the statute…
At that point Kagan was floundering a little, but she got her own back later on. Sotomayor wondered whether the material support statute is so vague that “teaching these members to play the harmonica would be unlawful” because “you are … training them in a … specialized activity.”
Kagan began a serious response but then couldn’t help herself: “I think the first thing I would say is there are not a whole lot of people going around trying to teach Al-Qaeda how to play harmonicas,” she said. Kagan then stressed that she didn’t mean to “make fun of the hypothetical at all.”