I think I agree with this: The evidence we have from Kagan’s life and works might not be abundant, but on the whole, it shows her to be a conventional Democrat who is comfortable with at least certain progressive uses of judicial power.
Certainly, handwringing about her potential support for unlimited executive power to detain terrorism suspects does not seem based on a balanced reading of her statements and actions in this area. However, the following statement is somewhat troubling (if unsurprising): ...the regulatory efforts that will achieve the most, given settled law, will be the efforts that may appear, at first glance, to promise the least... They will be efforts taking advantage of the long-established unprotected category of obscenity... Such efforts will not eradicate all pornography or all hate speech from our society, but they can achieve much worth achieving. They, and other new solutions, ought to be debated and tested in a continuing and multi-faceted effort to enhance the rights of minorities and women, while also respecting core principles of the First Amendment.
The sort of regretful way that this passage seems to accept the barriers that the first amendment places upon the progressive agenda of limits on speech reveals that the writer is not an advocate of strong freedom of speech protections and welcomes new legislation which would attempt to creatively limit speech within the available boundaries. The author seems to have respect for some of the reasons for the established barriers, but the passage also suggests that the author would be open to interpretations which expand the scope of obsenity regulation within those barriers, for example. The result will, ultimately, not be good for those who don't think the government should regulate what people think. It is, however, completely consistent with mainstream liberal thinking regarding the first amendment, which is anything but libertarian, and has been heavily influenced by radical feminism and other fundamentally authoritarian approaches to achieving a more liberal society. The liberal case against Kagan is overstated - Obama's Supreme Court Nominees | Supreme Court Justices - Salon.com | 
