Supreme Court Nominee Elena Kagan Goes to Bat for Monsanto, Sides With Conservative Justices May 13, 2010
Posted by rogerhollander in Agriculture, Criminal Justice, Environment, Health.Tags: agriculture, alfalfa, biotech, clarence thomas, elena kagan, food, genetic engineering, john roberts, joshua frank, monsanto, roger hollander, scalia, supremen court, usda
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(Roger’ note: Suprme Court Justice Nominee ElenaKagan is known for her penchant for hiring white males at Harvard, her support for violating the constitution and international law with respect to torture, habeas corpus and executive power; and now we see how friendly she can be to huge corporate interests when they are challenged by environmentalists and health advocates. Thank you, President Obama.)
Thursday 13 May 2010
by: Joshua Frank, t r u t h o u t | Report
(Photo: Harvard Law Record)
Alfalfa is the fourth largest crop grown in the United States and Monsanto wants to control it. On April 27, the Supreme Court heard arguments in a case that could well write the future of alfalfa production in our country.
Fortunately, for those who are concerned about the potential environmental and health impacts of genetically engineered (GE) crops, Supreme Court nominee Elena Kagan is not yet residing on the bench.
For the past four years, the Center for Food Safety (CFS), a Washington DC-based consumer protection group, and others have litigated against Monsanto and the United States Department of Agriculture (USDA) regarding the company’s Roundup Ready alfalfa. The coalition has focused their fight against Monsanto’s GE alfalfa, based on concerns that the plants could negatively impact biodiversity as well as other non-GE food crops.
In 2007, a California US District Court ruled in a landmark case that the USDA had illegally approved Monsanto’s GE alfalfa without carrying out a proper and full Environmental Impact Statement. The plaintiffs argued that GE alfalfa could contaminate nearby crops with its genetically manipulated pollen. Geertson Seed Farm, with the help of CFS, claimed that the farm’s non-GE crops could be damaged beyond repair by Monsanto’s Roundup Ready alfalfa.
Monsanto’s well-paid legal team appealed the court’s decision, but, in June 2009, the Ninth Circuit Court of Appeals upheld the previous ruling and placed a nationwide ban on Monsanto’s Roundup Ready alfalfa.
“USDA should start over and truly evaluate the contamination of non-GM alfalfa and the potential affects on seed growers, organic and natural meat producers, dairy producers, and conventional and organic honey producers,” said farmer and anti-GE advocate Todd Leake shortly after the ruling.
Monsanto, however, didn’t back down and appealed the Ninth Circuit’s decision to the US Supreme Court. In stepped Elena Kagan, whose role as solicitor general is to look out for the welfare of American citizens in all matters that come before the high court.
Unfortunately, Kagan opted to ditch her duty and instead side with Monsanto. In March 2010, a month before the Supreme Court heard arguments in the case, the solicitor general’s office released a legal brief despite the fact that the US government was not a defendant in the case.
As Kagan’s office argued, “The judgment of the court of appeals should be reversed, and the case should be remanded with instructions to vacate the permanent injunction entered by the district court.”
Despite numerous examples of cross-pollination of GE crops, Monsanto argued during the April 27 court proceedings that this was highly unlikely to occur. CFS and other plaintiffs are concerned that a federal law could be affected by the Supreme Court’s ruling. Courts in Oregon and California have already argued in previous cases that GE seeds must also be studied as to the potential impact on other conventional and organic crops.
Surprisingly, it seems that Kagan does not support a thorough study of GE seeds and their potential impact on environmental and human health. In doing so, Kagan has sided with conservative justices on the court who appeared skeptical that the lower courts had made the right decision in banning GE alfalfa.
During the Supreme Court hearings, Chief Justice John Roberts questioned whether the Ninth Circuit had the authority to issue a ban on GE alfalfa. Roberts contented that the court ought to have instead remanded the issue back to the USDA. Conservative Justice Antonin Scalia took his defense of Monsanto even further, stating, “This isn’t the contamination of the New York City water supply,” he said. “This isn’t the end of the world, it really isn’t.”
Apparently Scalia and Roberts aren’t up on the latest scientific analysis that Monsanto’s GE crops have, in fact, bred new voracious super-weeds, which have forced farmers to “spray fields with more toxic herbicides, pull weeds by hand, and return to more labor-intensive methods like regular plowing.”
“Bowing to pressure from Monsanto and the other biotech companies, our federal agencies approved [GE] corn and cotton without requiring any mandatory testing for environmental impacts,” Andrew Kimbrell, executive director for the CFS recently wrote. “And the expected happened: a few years later, independent university researchers – again not the government – discovered that this [GE] pesticide was potentially fatal to Monarch butterflies and other pollinators … Without mandatory government testing, we’re clueless about the universe of keystone pollinators and other species that are being decimated as the [GE] plants continue to proliferate in our fields.”
The Supreme Court’s decision on Monsanto’s alfalfa ban will likely come early this summer. Justice Stephen Breyer recused himself from the case because his brother Charles Breyer oversaw the lower court’s decision against the company. Unsurprisingly, Justice Clarence Thomas, who once worked in the legal department for Monsanto, did not recuse himself from the matter.
While Elena Kagan has no experience on the bench and has provided the public with little to no information about where she stands on some of the most important issues of the day, the fact that she came to bat for Monsanto two months, at a time when the company is reeling from negative press, may shed some light on how she could rule in future GE cases if she’s confirmed as the next Supreme Court justice.
The Disappointing Kagan Pick May 12, 2010
Posted by rogerhollander in Criminal Justice.Tags: bagram, constitution, detainees, due process, elena kagan, executive powers, executive privilege, geneva conventions, habeas corpus, justice, justice kennedy, justice stevens, law, matthew rothschild, obama nomination, presidential power, state secrets, supreme court
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(Roger’s note: it may seem redundant to keep on harping about Obama’s selection of Kagan; all indications are that it is a done deal, i.e. she will be confirmed. I have read many good things about her from progressive blogs and the Obama web site (one commentary that really grated against my sensibility lauded her as a “safe” choice; just what we need, a safe choice to confront the four ultra-conservative ideologues: Justices Alito, Roberts, Scalia and Thomas). I am sure there are indeed good things to be said about soon-to-be Justice Kagan. Too bad that she has a penchant for hiring white males, but much worse, when it comes to presidential powers, she has little respect for such minor considerations as the constitution, the Geneva Conventions, and the concept of habeas corpus. Well, as my daughters always reminded me, nobody’s perfect.)
I’m troubled by Obama’s nomination of Elena Kagan to the Supreme Court.
I’m troubled not because she has no prior experience as a judge. Obama’s right that we need more than cloistered judges on the top bench.
But I wish she had more experience outside of the University of Chicago Law School and Harvard Law School, outside of the Clinton White House and the Obama White House.
These aren’t the widest of worldly experiences.
And her time in the White House is especially troubling.
I’d much prefer having a non-judge who was a former member of Congress, for instance, someone who had an intense personal appreciation for the other branch of government.
Unfortunately, Kagan’s government experience is with the Executive Branch and with upholding its powers. That’s what she did as Solicitor General, remember. She went to bat for the Presidency.
And this President, like George W., has embraced a vast expansion of Executive Powers. So Kagan or her deputies have repeatedly gone into court to invoke the undemocratic doctrine of state secrets. And they’ve gone into court to assert the right to hold any person, captured by the military or the CIA or by some foreign power anywhere in the world, for an indefinite period of time at Bagram Air Base in Afghanistan-without recourse to any due process rights whatsoever.
In Maqaleh v. Gates, she told a federal court: “When it comes to military facilities, unlike Guantanamo, that are truly abroad-particularly those halfway across the globe in an active war zone-courts in the United States exceed their role by second-guessing the political branches about the reach of habeas jurisdiction.”
It’s no surprise that Kagan disdains due process for detainees. At her confirmation hearings as Solicitor General, Kagan testified that she had no problem with that.
Well, I do. And Justice John Paul Stevens sure did. And the Constitution does. And the Geneva Conventions do.
It’s more than a little too bad that she doesn’t. And that Obama doesn’t.
Stevens, by the way, brought Kennedy along and assigned him the role of writing the decision in the Boumediene case that limited the Executive Branch’s ability to deny due process to detainees.
Wrote Kennedy: “The test for determining the scope of the habeas corpus provision must not be subject to manipulation by those whose power it is designed to restrain.”
So, on this crucial issue of executive power, Kagan is to the right of Kennedy!
I also doubt that Kagan will be better than Stevens in influencing Kennedy, much less the justices on his right. Like Kennedy, Stevens was appointed by a Republican, and Stevens had 12 years on the Court before Kennedy, his junior, came along.
Still, Obama hailed her “skill as a consensus-builder.” But what the court needs now is not a “consensus-builder,” since on many issues there is no basis for consensus. There is a vast ideological gulf. Instead, it needs someone who can advocate as aggressively for a progressive jurisprudence as Roberts, Alito, Scalia, and Thomas advocate for a reactionary one.
The Supreme Court is not Harvard Law School. And Kagan will not be the dean. She’ll be the junior member. To the extent that she is determined to be a consensus builder, the conservatives are more likely to drag her their way than she is likely to drag them in a progressive direction.
More’s the pity.
© 2010 The Progressive
Matthew Rothschild is the editor of The Progressive magazine.
Obama’s Kagan Choice Will Push Court to the Right May 10, 2010
Posted by rogerhollander in Criminal Justice.Tags: constitution, Criminal Justice, earl warren, elena kagan, john paul stevens, john roberts, marjorie cohn, obama appointment, rehnquist, roger hollander, supreme court, warren court
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Can Kagan Fill Stevens’ Mighty Shoes?
by Marjorie Cohn
As the Rehnquist court continued to eviscerate the right of the people to be free from unreasonable searches and seizures, Associate Justice John Paul Stevens filed principled and courageous dissents. For example, the majority held in the 1991 case of California v. Acevedo that although the police cannot search a closed container without a warrant, they can wait until a person puts the container into a car and then do a warrantless search because the container is now mobile. In a ringing dissent that exemplified his revulsion at executive overreaching, Justice Stevens wrote that “decisions like the one the Court makes today will support the conclusion that this Court has become a loyal foot soldier in the Executive’s fight against crime.”
The founders wrote checks and balances into the Constitution so that no one branch would become too powerful. But during his “war on terror,” President George W. Bush claimed nearly unbridled executive power to hold non-citizens indefinitely without an opportunity to challenge their detention and to deny them due process. Three times, a closely divided Supreme Court put on the brakes. Justice Stevens played a critical role in each of those decisions. He wrote the opinions in Rasul v. Bush and Hamdan v. Rumsfeld and his fingerprints were all over Boumediene v. Bush.
Unfortunately, President Barack Obama has continued to assert many of Bush’s executive policies in his “war on terror.” Elena Kagan, reportedly Obama’s choice to replace Justice Stevens, has never been a judge. But she has been a loyal foot soldier in Obama’s fight against terrorism and there is little reason to believe that she will not continue to do so. During her confirmation hearing for solicitor general, Kagan agreed with Senator Lindsey Graham that the president can hold suspected terrorists indefinitely during wartime, and the entire world is a battlefield.
Justice Stevens ruled in favor of broad enforcement of our civil rights laws. In his 2007 dissent in Parents Involved in Community Schools v. Seattle School District No. 1, he wrote that “children of all races benefit from integrated classrooms and playgrounds.” When Kagan was dean of Harvard Law School, she hired 32 tenured and tenure-track academic faculty members. Only seven were women and only one was a minority. “What a twist of fate,” wrote four minority law professors on Salon.com, “if the first black president – of both the Harvard Law Review and the United States of America – seemed to be untroubled by a 21st Century Harvard faculty that hired largely white men.”
Obama has a golden opportunity to appoint a giant of a justice who can take on the extreme right-wingers on the Court who rule consistently against equality and for corporate power. When he cast a vote against the confirmation of John Roberts to be Chief Justice, Senator Obama said, “he has far more often used his formidable skills on behalf of the strong and in opposition to the weak.” Justice Stevens has done just the opposite.
If he wants to choose a non-judge, Obama could pick Harold Hongju Koh or Erwin Chemerinsky, both brilliant and courageous legal scholars who champion human rights and civil rights over corporate and executive power. Unlike Kagan, whose 20 years as a law professor produced a paucity of legal scholarship, Koh and Chemerinsky both have a formidable body of work that is widely cited by judges and scholars.
But it appears Obama will take the cautious route and nominate Kagan, who has no record of judicial opinions and no formidable legal writings. After the health care debacle, he should know that the right-wingers will not be appeased by this milk toast appointment, but will oppose whomever he nominates.
The Warren Court issued several landmark decisions. It sought to remedy the inequality between the races and between rich and poor, and to curb unchecked executive power. Chief Justice Earl Warren wrote these words, which would later become his epitaph: “Where there is injustice, we should correct it. Where there is poverty, we should eliminate it. Where there is corruption, we should stamp it out. Where there is violence, we should punish it. Where there is neglect, we should provide care. Where there is war, we should restore peace. And wherever corrections are achieved, we should add them permanently to our storehouse of treasures.”
Conservatives decry activist judges – primarily those who act contrary to conservative politics. But the Constitution is a short document and it is up to judges to interpret it. Obama has defensively bought into the right-wing rhetoric, saying recently that during the 1960’s and 1970’s, “liberals were guilty” of the “error” of being activist judges. Rather than celebrating the historic achievements of the Warren Court – and of Justice Stevens – Obama is once again cowering in the face of conservative opposition.
Obama should do the right thing, the courageous thing, and fill Justice Stevens’ seat with someone who can fill his shoes. If he nominates Elena Kagan, Obama will move the delicately balanced court to the Right. And that would be the wrong thing.
Marjorie Cohn is a professor at Thomas Jefferson School of Law and past President of the National Lawyers Guild. She is the author of Cowboy Republic: Six Ways the Bush Gang Has Defied the Law and co-author of Rules of Disengagement: The Politics and Honor of Military Dissent (with Kathleen Gilberd). Her anthology, The United States and Torture: Interrogation, Incarceration and Abuse, will be published in 2010 by NYU Press. Her articles are archived at www.marjoriecohn.com
Obama’s Natural Choice of Kagan May 10, 2010
Posted by rogerhollander in Barack Obama, Criminal Justice.Tags: constitution, Criminal Justice, democrats, diane wood, elena kagan, executive authority, glenn greenwald, harriet miers, imprial presidency, justice stevens, kagan, nomination, obama nomination, roger hollander, supreme court
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(Roger’s note: Greenwald notes that the Republicans when in power appoint those who reflect and represent their fundamental principles, while the Democrats compromise to the right. The reason for this? It may be a simplification, but in reality there are two constituencies in America: the corporations and the people (corporate versus general interests). Both parties are owned in essence by the corporations. The Republicans advance corporate interests with impunity, while the Democrats are more circumspect. Both parties will occasionally bend to implement what is in the general interest of Americans, but only when they are under enormous popular pressure, and never in a way that seriously threatens the strangle hold the corporations have on the country. Needless to say, with virtually no exceptions the mass media, also owned and controlled by corporations, go along; with the military always there holding the Big Stick. This is called “democracy,” but in a world where capital reigns, democracy becomes a hollow farce.)
It’s anything but surprising that President Obama has chosen Elena Kagan to replace John Paul Stevens on the Supreme Court. Nothing is a better fit for this White House than a blank slate, institution-loyal, seemingly principle-free careerist who spent the last 15 months as the Obama administration’s lawyer vigorously defending every one of his assertions of extremely broad executive authority. The Obama administration is filled to the brim with exactly such individuals — as is reflected by its actions and policies — and this is just one more to add to the pile. The fact that she’ll be replacing someone like John Paul Stevens and likely sitting on the Supreme Court for the next three decades or so makes it much more consequential than most, but it is not a departure from the standard Obama approach.
The New York Times this morning reports that “Mr. Obama effectively framed the choice so that he could seemingly take the middle road by picking Ms. Kagan, who correctly or not was viewed as ideologically between Judge Wood on the left and Judge Garland in the center.” That’s consummate Barack Obama. The Right appoints people like John Roberts and Sam Alito, with long and clear records of what they believe because they’re eager to publicly defend their judicial philosophy and have the Court reflect their values. Beltway Democrats do the opposite: the last thing they want is to defend what progressives have always claimed is their worldview, either because they fear the debate or because they don’t really believe those things, so the path that enables them to avoid confrontation of ideas is always the most attractive, even if it risks moving the Court to the Right.
Why would the American public possibly embrace a set of beliefs when even its leading advocates are unwilling to publicly defend them and instead seek to avoid that debate at every turn? Hence: Obama chooses an individual with very few stated beliefs who makes the Right quite comfortable (even as they go through the motions of opposing her). As Kevin Drum writes:
[R]ight now Obama has the biggest Democratic majority in the Senate he’s ever going to have. So why not use it to ensure a solidly progressive nominee like Diane Wood instead of an ideological cipher like Kagan? . . . . When Obama compromises on something like healthcare reform, that’s one thing. Politics sometimes forces tough choices on a president. But why compromise on presidential nominees? Why Ben Bernanke? Why Elena Kagan? He doesn’t have to do this. Unfortunately, the most likely answer is: he does it because he wants to.
It’s even less surprising that Obama would not want to choose someone like Diane Wood. If you were Barack Obama, would you want someone on the Supreme Court who has bravely and resolutely insisted on the need for Constitutional limits on executive authority, resolutely opposed the use of Terrorism fear-mongering for greater government power, explicitly argued against military commitments and indefinite detention, repeatedly applied the progressive approach to interpreting the Constitution to a wide array of issues, insisted upon the need for robust transparency and checks and balances, and demonstrated a willingness to defy institutional orthodoxies even when doing so is unpopular? Of course you wouldn’t. Why would you want someone on the Court who has expressed serious Constitutional and legal doubts about your core policies? Do you think that an administration that just yesterday announced it wants legislation to dilute Miranda rights in the name of Scary Terrorists — and has seized the power to assassinate American citizens with no due process — wants someone like Diane Wood on the Supreme Court?
One final thought about Kagan for now. As I said from the beginning, the real opportunity to derail her nomination was before it was made, because the vast majority of progressives and Democrats will get behind anyone, no matter who it is, chosen by Obama. That’s just how things work. They’ll ignore most of the substantive concerns that have been raised about her, cling to appeals to authority, seize on personal testimonials from her Good Progressive friends, and try to cobble together blurry little snippets to assure themselves that she’s a fine pick. In reality, no matter what they know about her (and, more to the point, don’t know), they’ll support her because she’s now Obama’s choice, which means, by definition, that she’s a good addition to the Supreme Court. Our politics is nothing if not tribal, and the duty of Every Good Democrat is now to favor Kagan’s confirmation. Conservatives refused to succumb to those rules and ended up with Sam Alito instead of Harriet Miers, but they had a much different relationship to George Bush than progressives have to Obama (i.e., conservatives — as they proved several times [Miers, immigration, Dubai Ports] — were willing to oppose their leader whey they disagreed). The White House knows that progressives will never try to oppose any important Obama initiative, and even if they were inclined, they lack the power to do so (largely because unconditional support guarantees impotence).
All that said, I’ve said everything I had to say about Kagan in the pre-nomination process in order to enable as informed a public discussion as possible, and am not going to endlessly repeat those criticisms now just for the sake of doing so. Perhaps the confirmation process, for once, will yield some valuable information about the nominee and we’ll acquire at least some insight into how she thinks and what her judicial values and methods will be. I’m willing to keep an open mind. NPR’s Nina Totenberg yesterday uncovered (or was provided) a relatively encouraging piece of evidence that no public commentators (including me) had previously discovered: a 2005 letter co-signed by Kagan which opposed a proposal by Lindsey Graham to strip “War on Terror” detainees of the right to habeas corpus on the ground that the proposal was a violation of core American principles (that provision was ultimately included in the Military Commissions Act and struck down in 2008 by a 5-4 Supreme Court as unconstitutional).
The most important point to note about Kagan now is the one highlighted this weekend by Talk Left’s Armando, as first reported by The Los Angeles Times: in 1995, Kagan condemned the Supreme Court confirmation process as “a vapid and hollow charade” and an “embarrassment,” arguing that Senators should “insist that any nominee reveal what kind of Justice she would make, by disclosing her views on important legal issues.” Kagan should absolutely be held to her own position in that regard. Her argument that nominees should be compelled to answer such questions was absolutely right, and that’s especially applicable to Kagan in light of her own glaring lack of a real record on virtually everything. She ought to be held to her own position and “reveal what kind of Justice she would make” and “disclose her views on important legal issues.” I’m certainly willing to listen if she does that and then make a rational assessment of her based on those answers. Anyone wanting to form a rational choice should demand that she do the same.
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I’ll be on Democracy Now this morning at 8:10 a.m. EST (live video here) discussing Kagan, and on MSNBC a few times later today, and will post exact times when I know them.
© 2010 Salon.com
Glenn Greenwald was previously a constitutional law and civil rights litigator in New York. He is the author of the New York Times Bestselling book “How Would a Patriot Act?,” a critique of the Bush administration’s use of executive power, released in May 2006. His second book, “A Tragic Legacy“, examines the Bush legacy.
The Case Against Elena Kagan April 13, 2010
Posted by rogerhollander in Criminal Justice.Tags: civil liberties, constitution, daniel novack, elena kagan, executive power, glenn greenwald, presidential power, roger hollander, rule of law, supreme court, War Crimes
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It is far from clear who Obama will chose to replace John Paul Stevens on the Supreme Court, but Elena Kagan, his current Solicitor General and former Dean of Harvard Law School, is on every list of the most likely replacements. Tom Goldstein of SCOTUSblog has declared her “the prohibitive front-runner” and predicts: “On October 4, 2010, Elena Kagan Will Ask Her First Question As A Supreme Court Justice.” The New Yorker‘s Jeffrey Toobin made the same prediction.
The prospect that Stevens will be replaced by Elena Kagan has led to the growing perception that Barack Obama will actually take a Supreme Court dominated by Justices Scalia (Reagan), Thomas (Bush 41), Roberts (Bush 43), Alito (Bush 43) and Kennedy (Reagan) and move it further to the Right. Joe Lieberman went on Fox News this weekend to celebrate the prospect that “President Obama may nominate someone in fact who makes the Court slightly less liberal,” while The Washington Post‘s Ruth Marcus predicted: “The court that convenes on the first Monday in October is apt to be more conservative than the one we have now.” Last Friday, I made the same argument: that replacing Stevens with Kagan risks moving the Court to the Right, perhaps substantially to the Right (by “the Right,” I mean: closer to the Bush/Cheney vision of Government and the Thomas/Scalia approach to executive power and law).
Consider how amazing it is that such a prospect is even possible. Democrats around the country worked extremely hard to elect a Democratic President, a huge majority in the House, and 59 Democratic Senators — only to watch as the Supreme Court is moved further the Right? Even for those who struggle to find good reasons to vote for Democrats, the prospect of a better Supreme Court remains a significant motive (the day after Obama’s election, I wrote that everyone who believed in the Constitution and basic civil liberties should be happy at the result due to the numerous Supreme Court appointments Obama would likely make, even if for no other reason).
There will, of course, be some Democrats who will be convinced that any nominee Obama chooses is the right one by virtue of being Obama’s choice. But for those who want to make an informed, rational judgment, it’s worthwhile to know her record. I’ve tried here to subject that record to as comprehensive and objective an assessment as possible. And now is the time to do this, because if Kagan is nominated, it’s virtually certain that she will be confirmed. There will be more than enough Republicans joining with the vast majority of Democrats to confirm her; no proposal ever loses in Washington for being insufficiently progressive (when is the last time such a thing happened?). If a Kagan nomination is to be stopped, it can only happen before her nomination is announced by Obama, not after.
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Kagan’s lack of a record
One of the difficulties in assessing Kagan’s judicial philosophy and view of the Constitution is that direct evidence is extremely sparse. That’s not only because she’s never been a judge, but also because (a) her academic career is surprisingly and disturbingly devoid of writings or speeches on most key legal and Constitutional controversies, and (b) she has spent the last year as Obama’s Solicitor General, where (like any lawyer) she was obligated to defend the administration’s policies regardless of whether she agreed with them. As Goldstein wrote at SCOTUSblog: “it seems entirely possible that Elena Kagan does not really have a fixed and uniform view of how to judge and to interpret the Constitution.”
As I’ve previously documented and examine further below, the evidence that is available strongly suggests that a Kagan-for-Stevens substitution would move the Court to the Right in critical areas. But Kagan’s lack of a real record on these vital questions, by itself, should cause progressives to oppose her nomination. That’s true for two reasons:
First, given that there are so many excellent candidates who have a long, clear commitment to a progressive judicial philosophy, why would Obama possibly select someone who — at best — is a huge question mark, and who could easily end up as the Democrats’ version of the Bush-41-appointed David Souter, i.e., someone about whom little is known and ends up for decades embracing a judicial philosophy that is the exact opposite of the one the President’s party supports? As Goldstein wrote of Kagan:
Are there risks for the left in a Kagan nomination? God yes. The last nominee about whose views we knew so little was David Souter. . . . I don’t know anyone who has had a conversation with her in which she expressed a personal conviction on a question of constitutional law in the past decade.
Why would any progressive possibly want to take risks like that given how large the stakes are, and given how many other excellent, viable candidates Obama can choose who have a long and clear record?
This was exactly the argument which conservatives such as David Frum made to force George Bush to withdraw Harriet Miers as his replacement for Sandra Day O’Connor and instead choose Sam Alito. As Frum put it on PBS during the fight over Miers:
Stakes are so enormous in this seat. This is something, as Bill Kristol said, the conservatives have worked for, for a long time. . . . I mean she has been a lawyer for more than three decades. In that time she has never found it necessary to express herself on any of the great issues of the day. . . Part of what isn’t good enough is for the president to say — although there are lots of conservatives of incredible distinction who have written and published, where the world can know what they think — “I have a secret, I know something and nobody else does. And I’m going to go with my personal knowledge.”
Republicans have been disappointed with that kind of knowledge often before, and although they trust and support this president, he is asking too much.
[It’s ironic that the anti-Miers case was grounded in conservatives’ refusal to place too much faith and trust in their President’s judgment. Can anyone envision Democrats mounting a serious and sustained campaign against Obama’s Supreme Court nominee of the type mounted against Bush by conservatives, whom progressives like to accuse of blind leader/party loyalty?]
Frum’s anti-Miers argument prevailed, and conservatives got what they wanted: Sam Alito, someone with a long record of advocacy for their judicial philosophy who they knew would be the kind of Justice they wanted for decades to come. Part of the conservative case against Miers (i.e., that she lacked intellectual heft) is plainly inapplicable to the unquestionably intelligent Kagan, but the bulk of it is directly applicable: why should progressives who care about the Supreme Court possibly accept someone whose judicial and Constitutional philosophy can barely be discerned?
When it came time to replace David Souter, Sonia Sotomayor was far from the ideal nominee for many progressives, yet virtually all supported her nomination (as did I, vigorously) because it was clear that she would be essentially the same kind of Justice as Souter, and would thus maintain the Court’s balance. By contrast, conservatives rightly perceived that replacing O’Connor was a once-in-a-generation opportunity to shape the Court to their beliefs about judicial philosophy, and they thus refused to accept a nominee about whom so little was known.
Under the circumstances that prevail now, why would progressives possibly demand any less? After all, Obama is now replacing the Justice who has become the leader of the “liberal” wing of the Supreme Court (accepting the dubious premise that there is even is such a thing as a “liberal” wing). As Scott Lemieux notes, this is the seat which, since 1916, has been held by only three Justices, three of the great progressives Justices in history — Louis Brandeis, William O. Douglas, and Stevens. Given that, why wouldn’t progressives insist on a nominee whom they know will approach legal questions at least as progressively as Stevens did — or, dare to dream, have a nominee be more progressive than the Justice being replaced, something that hasn’t happened literally in decades? Acquiescing to a Kagan nomination would mean accepting someone who could easily move well to the Right of Stevens, thus taking the whole Supreme Court with her.
Second, I believe Kagan’s absolute silence over the past decade on the most intense Constitutional controversies speaks very poorly of her. Many progressives argued (and I certainly agree) that the Bush/Cheney governing template was not merely wrong, but a grave threat to our political system and the rule of law. It’s not hyperbole to say that it spawned a profound Constitutional crisis.
Recognizing the severity of this radicalism, numerous legal academicians used their platforms — and created new ones — to protest vocally and relentlessly. Former OLC official and Georgetown Law Professor Marty Lederman blogged on a virtually daily basis about the extremism and lawlessness of Bush’s policies. Former Acting OLC Chief and Indiana University Law Professor Dawn Johnsen wrote article after article decrying the lawlessness and demanding greater public outrage. Georgetown Law Professor Neal Katyal — Kagan’s not-at-all-progressive Deputy Solicitor General — was so appalled by Bush/Cheney extremism that he spent a huge number of hours working pro bono representing Osama bin Laden’s driver all the way to the U.S. Supreme Court, where he succeeded in having Bush’s military commissions declared illegal and the Geneva Conventions held applicable to all detainees — in a decision written by Justice Stevens (and, like Johnsen and Lederman, Katyal has a long record of written analysis on a whole litany of key legal controversies, including vehement opposition to many aspects of the Bush/Cheney assault).
Where was Elena Kagan during all of this? Why is it seemingly impossible to find even a single utterance from her during the last decade regarding the radical theories of executive power the Bush administration invoked to commit grave crimes and other abuses? It’s possible that she said something at some point, but many hours of research (and public inquiries) have revealed nothing — other than when she endorsed the core Bush template during her Solicitor General confirmation hearing. As Adam Liptak put it in The New York Times when she was nominated last year for Solicitor General: “she has provided few clues about where she stands on the great legal issues of the day, notably the Bush administration’s broad assertions of unilateral executive power in areas like detention, surveillance, interrogation and rendition.” The Boston Globe similarly pointed out that she “has had little to say about the legal and political issues related to presidential power that have emerged as a result of Bush’s efforts to combat terrorism.”
Given the severity of the crisis posed by Bush/Cheney lawlessness, what justifies someone with Kagan’s platform — Dean of Harvard Law School and former Clinton White House lawyer — remaining utterly silent in the face of that assault? Even if one believes that a Law School Dean should generally be attentive to institution-building, didn’t the severity of the legal crisis spawned by Bush and Cheney merit serious opposition from those in a position to voice it? Before any progressive considers supporting her nomination to the Court, shouldn’t they be able to point to some evidence, somewhere, that she opposed the core claims used to prop up the Bush/Cheney assault on the Constitution and the rule of law?
* * * * *
The sparse record of Kagan’s views
Beyond the disturbing risks posed by Kagan’s strange silence on most key legal questions, there are serious red flags raised by what little there is to examine in her record. I’ve written twice before about that record — here (last paragraph) and here — and won’t repeat those points. Among the most disturbing aspects is her testimony during her Solicitor General confirmation hearing, where she agreed wholeheartedly with Lindsey Graham about the rightness of the core Bush/Cheney Terrorism template: namely, that the entire world is a “battlefield,” that “war” is the proper legal framework for analyzing all matters relating to Terrorism, and the Government can therefore indefinitely detain anyone captured on that “battlefield” (i.e., anywhere in the world without geographical limits) who is accused (but not proven) to be an “enemy combatant.”
Those views, along with her steadfast work as Solicitor General defending the Bush/Cheney approach to executive power, have caused even the farthest Right elements — from Bill Kristol to former Bush OLC lawyer Ed Whelan — to praise her rather lavishly. Contrast all of that with Justice Stevens’ unbroken record of opposing Bush’s sweeping claims of executive power every chance he got, at times even more vigorously than the rest of the Court’s “liberal wing,” and the risks of a Kagan nomination are self-evident.
The only other real glimpse into Kagan’s judicial philosophy and views of executive power came in a June, 2001 Harvard Law Review article (.pdf), in which she defended Bill Clinton’s then-unprecedented attempt to control administrative agencies by expanding a variety of tools of presidential power that were originally created by the Reagan administration (some of which Kagan helped build while working in the Clinton White House), all as a means of overcoming a GOP-controlled Congress. This view that it is the President rather than Congress with primary control over administrative agencies became known, before it was distorted by the Bush era, as the theory of the “unitary executive.” I don’t want to over-simplify this issue or draw too much importance from it; what Kagan was defending back then was many universes away from what Bush/Cheney ended up doing, and her defense of Clinton’s theories of administrative power was nuanced, complex and explicitly cognizant of the Constitutional questions they might raise.
Still, the questions she was addressing were the crux of the debate back then over the proper limits of executive authority, and the view she advocated was clearly one that advocated far more executive power than had been previously accepted. Kagan’s 2001 law review article is what led to this from The Boston Globe when Kagan was nominated for Solicitor General:
“She is certainly a fan of presidential power,” said William F. West, a professor who specializes in federal administration at the Bush School of Government and Public Service at Texas A&M.
Similarly — and very revealingly — even the moderate Neal Katyal, now Kagan’s Deputy, emphatically criticized Kagan’s theories in that law review article as executive overreach and even linked them to the Bush/Cheney executive power seizures. Katyal wrote in a June, 2006 article in The Yale Law Journal (.pdf; emphasis added):
Such claims of executive power are not limited to the current administration, nor are they limited to politicians. Take, for example, Dean Elena Kagan’s rich celebration of presidential administration. Kagan, herself a former political appointee, lauded the President’s ability to trump bureaucracy. Anticipating the claims of the current administration, Kagan argued that the President’s ability to overrule bureaucrats “energize[s] regulatory policy” because only “the President has the ability to effect comprehensive, coherent change in administrative policymaking” . . . .
Assaulted by political forces, the modern agency is a stew of presidential loyalists and relatively powerless career officials. To this political assault comes an academic one as well, with luminaries such as Elena Kagan celebrating presidential administration an unitary executivists explaining why such theories are part of our constitutional design. This vision may work in eras of divided government, but it fails to control power the rest of the time.
As Katyal noted, Kagan relied upon the warning from Alexander Hamilton about a “feeble executive” that was beloved by Bush/Cheney legal theorists, and she hailed “strong, executive vigor.” On the legal spectrum, Kagan clearly sits on the end of strong assertions of executive authority — perhaps on the far end, almost certainly much further than where Stevens falls. It’s perhaps unsurprising that a President — such as Barack Obama — would want someone on the Supreme Court who is quite deferential to executive authority. But given that so many of the most important legal and Constitutional disputes center on the proper limits of executive power (including ones that remain to be decided from the Bush era), and that Kagan and her rulings will likely long outlast an Obama presidency (i.e., any pro-executive-power decisions she issues will apply to future George Bushes and Dick Cheneys), shouldn’t these pro-executive-power views, by themselves, prompt serious reservations (if not outright opposition) among progressives?
Kagan’s record on social issues will likely be perfectly satisfactory, even pleasing, to most progressives. She is, by all appearances, solidly pro-choice and in favor of gay equality. But even on domestic issues, serious questions have been raised about how progressive her views actually are, as exemplified by this New York Times profile from Eric Lichtblau last year examining Kagan’s prospects as a Supreme Court nominee:
“I want a Brennan or a Marshall, someone clearly on the liberal side,” said Michael Ratner, president of the Center for Constitutional Rights, referring to liberal court icons William J. Brennan and Thurgood Marshall.
“I don’t think Kagan is at that end of the liberal spectrum,” said Mr. Ratner, whose nonprofit legal group has helped lead the push for greater legal protections for prisoners at Guantánamo Bay. “Why they would put someone in who might not be a liberal anchor for the court is really bothersome, and I don’t see Kagan playing that role” . . . ..
Ms. Kagan first gained high-level notice as an aide in the Clinton White House, first as an associate counsel and then as deputy director of the Domestic Policy Council, working on issues like tobacco regulation, welfare reform, education, hate crimes and affirmative action.
“There were some important issues on which Elena took centrist or even center-right positions, but it was never clear whether she was pressing her own views or merely carrying water for her boss on the Domestic Policy Council, Bruce Reed,” said Christopher Edley Jr., who worked with Ms. Kagan at the White House and is now dean of the law school at the University of California, Berkeley.
And even on the issues where she has been impressive — such as her refusal to allow military recruiters to recruit at Harvard Law School due to their anti-gay discrimination — her record is ultimately rather muddled. After preening around for years justifying her ban on military recruiters by decrying the military’s ban on gays as “a profound wrong — a moral injustice of the first order,” she quickly reversed that policy and allowed military recruiters onto campus after the Federal Government threatened to withhold several hundred million dollars in funds to Harvard (out of a $60 billion endowment). One can reasonably argue that her obligation as Dean was to secure that funding for the school, but one can also reasonably question what it says about a person’s character when they are willing to flamboyantly fight against “profound wrongs” and “moral injustices of the first order” — only as long as there is no cost involved.
What makes the prospect of a Kagan nomination so disappointing is that there are so many superior alternatives — from the moderately liberal and brilliant 7th Circuit Judge Diane Wood and former Georgia Supreme Court Chief Justice Leah Ward Sears to the genuinely liberal Harold Koh (former Yale Law School Dean and current State Department counselor) and Stanford Law Professor Pam Karlan. If progressives aren’t willing to fight Obama for the Supreme Court, what are they willing to fight him for?
* * * * *
Most of the research presented here was done by Daniel Novack, a second-year law student at NYU School of Law. Novack, who works with me on many posts I write, also contributed several substantive points.
© 2010 Salon.com
Glenn Greenwald was previously a constitutional law and civil rights litigator in New York. He is the author of the New York Times Bestselling book “How Would a Patriot Act?,” a critique of the Bush administration’s use of executive power, released in May 2006. His second book, “A Tragic Legacy“, examines the Bush legacy.
Charlie Savage on Obama’s embrace of Bush/Cheney “terrorism policies” February 18, 2009
Posted by rogerhollander in Criminal Justice, Dick Cheney, George W. Bush, Torture.Tags: aclu, al-Qaeda, battlefield law, boeing, bush admnistration, charlie savage, cia, civil liberties, counterterrorism, elena kagan, enemy combatant, eric holder, extraordinary rendition, glenn greenwald, Gregory Craig, Guantanamo, interrogatin restrictions, leon panetta, military commissions, rendition, roger hollander, solicitor general, state secrets, state secrets doctrine, state secrets privilege, torture, war on terrorism, waterboarding
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Glenn Greenwald
www.salon.com, February 18, 2009
(updated below)
During the Bush presidency, there were few reporters, if there were any, who were better on issues of civil liberties and executive power abuses than Charlie Savage, who won the Pulitzer Prize for his work exposing the lawlessness of Bush’s signing statements while at The Boston Globe. For that reason, it will be very difficult even for the hardest-core Obama supporters to dismiss away the following observations about Obama as nothing more than the angry harping of excessively impatient, unfairly harsh and/or alarmist Obama critics (also referred to by some Obama supporters — using the Fox News script — as “Far Leftist, Marxist, reactionary, radical demagogues“). From Savage this morning in The New York Times:
Even as it pulls back from harsh interrogations and other sharply debated aspects of George W. Bush’s “war on terrorism,” the Obama administration is quietly signaling continued support for other major elements of its predecessor’s approach to fighting Al Qaeda.
In little-noticed confirmation testimony recently, Obama nominees endorsed continuing the C.I.A.’s program of transferring prisoners to other countries without legal rights, and indefinitely detaining terrorism suspects without trials even if they were arrested far from a war zone.
The administration has also embraced the Bush legal team’s arguments that a lawsuit by former C.I.A. detainees should be shut down based on the “state secrets” doctrine. It has also left the door open to resuming military commission trials.
And earlier this month, after a British court cited pressure by the United States in declining to release information about the alleged torture of a detainee in American custody, the Obama administration issued a statement thanking the British government “for its continued commitment to protect sensitive national security information.”
These and other signs suggest that the administration’s changes may turn out to be less sweeping than many had hoped or feared — prompting growing worry among civil liberties groups and a sense of vindication among supporters of Bush-era policies.
Savage lists several other examples of controversial Bush/Cheney “War on Terror” policies which have been either fully embraced or preliminarily welcomed by the Obama administration, all of which have been previously discussed here (though one episode Savage didn’t mention which is one of the most disturbing yet is the Obama DOJ’s ongoing and increasingly aggressive efforts to keep Bush’s NSA warrantless spying program shielded from judicial review, by invoking Bush’s State Secrets argument).
Concerning the pending dispute over Bush’s wildly broad assertions of executive privilege in order to prevent his aides (such as Karl Rove) from having to disclose information to Congress, Savage quotes Obama’s White House counsel Greg Craig as follows:
Addressing the executive-privilege dispute, Mr. Craig said: “The president is very sympathetic to those who want to find out what happened. But he is also mindful as president of the United States not to do anything that would undermine or weaken the institution of the presidency. So for that reason, he is urging both sides of this to settle.”
That may be the most revealing quote of the article. If — as virtually all Bush critics agree — the Bush presidency ushered in a massive and dangerous expansion of executive power, isn’t it necessary, by definition, to scale back some of those powers — i.e., to “undermine or weaken the institution of the presidency” — if those abuses are to be reversed? The cynical view has long been that Obama will not, on his own, meaningfully uproot Bush’s executive power expansions because political officials do not get into office and then start voluntarily giving up their own power. Craig’s statement constitutes a virtual affirmation of the cynic’s view of Obama’s intentions.
* * * * *
Having said all of this, and while believing that Savage’s article is of great value in sounding the right alarm bells, I think that he paints a slightly more pessimistic picture on the civil liberties front than is warranted by the evidence thus far (though only slightly). Additionally, it is all but certain that media stars and right-wing Bush followers will dishonestly exploit Savage’s article to make claims about “vindication of Bush policies” that go far beyond the cautious statements Savage makes.
As Savage notes, there was a flurry of Executive Orders issued by Obama in the first week which are indisputably positive and constitute genuine reversals of some key Bush policies — banning CIA black sites, guaranteeing International Red Cross access to all detainees (i.e., no more secret detentions), freezing all military commissions, increasing some Executive Branch restrictions on presidential secrecy powers, substantially limiting the interrogation techniques which (at least for now) the CIA is authorized to employ. All of those orders were, by design, preliminary, incomplete and reversible — and their value is therefore limited — but they were clearly important steps in the right direction.
Additionally, the fact that there are some Obama appointees with some inexcusably horrible, Bush/Cheney-replicating views — such as Solicitor General Elena Kagan’s endorsement of the “war” paradigm to justify indefinite, lawless detention of “enemy combatants” and Deputy Solicitor General Neal Katyal’s partnership with Bush official Jack Goldsmith to advocate for Orwellian “national security courts” — doesn’t mean that those will become Obama’s policies. After all, Obama’s own Vice President and Secretary of State last year co-sponsored legislation to ban the use of the State Secrets privilege as a preemptive tool to immunize Presidents from judicial scrutiny of alleged criminality, but that sure didn’t stop the Obama DOJ from embracing exactly that dangerous secrecy weapon in a federal appeals court last week. Policies become policies when the President adopts them, not when some of his appointees advocate them.
There are also some mildly encouraging signs that Congress will impose checks on Obama’s power when he fails to follow through on his promises to do so. As Savage notes, numerous members almost immediately re-introduced the State Secrets legislation as a rebuke to Obama after his DOJ advocated that power for itself. Perhaps more notably — and more surprisingly — Rep. Jane Harman, a Blue Dog who was one of the worst enablers of Bush abuses of the last eight years, wrote an excellent Op-Ed in her local newspaper last week that went way further than Obama has gone in demanding a restoration of basic civil liberties. She demands that all Guantanamo prisoners be released, sent home, or tried in our existing federal courts; that the Military Commissions Act be repealed in its entirety; and that all new laws in these areas be debated and drafted entirely out in the open, with full public hearings first.
If someone like Jane Harman is emphatically advocating those measures, then there may be hope that even if, as appears to be the case, Obama is intent on preserving some Bush/Cheney abuses, it will be Congress — which has the ultimate duty here — that stops him. If, for instance, Obama wants to create some new, due-process-abridging detention scheme on U.S. soil (“national security courts”), he will need Congressional approval, and if someone like Jane Harman is already signaling her opposition, it’s difficult (though hardly impossible) to imagine how he would obtain that. The fact that Congress has spent the last eight years being complicit, meek, compliant and impotent is no reason to assume they will continue to be. Congress has a history of being much more assertive with Democratic Presidents, and that could — and should — be an important check on Obama.
* * * * *
Nonetheless, there is no question that Obama has already taken some truly alarming steps, including — in addition to those listed above — invocation of highly dubious secrecy claims to resist FOIA requests and keep Bush/Cheney documents concealed. Moreover, after initially (and very tentatively) defending the limited rendition policy which Leon Panetta said they would continue, I’ve become convinced — for reasons Darren Hutchinson has argued and Savage today pointed out — that there’s more potential mischief in that policy than I immediately recognized.
There’s just no denying that there are substantial and disturbing steps which have been taken. And critically, the primary excuse offered by Obama supporters for all of these actions — he just needs more time; it’s only been three weeks — is a complete straw man.
These are not complaints that Obama has failed to act quickly enough to reverse Bush/Cheney policies. Indeed, there are many areas where Obama has explicitly said he needs time before deciding what he wants to do — closing Guantanamo, proceeding with detainee trials; deciding if he wants to claim Bush’s power to indefinitely detain “enemy combatants” on U.S. soil; responding to some FOIA requests, etc. Very few civil libertarians — and certainly not me — have objected to his needing more time before he finalizes his exact policies. That’s perfectly reasonable. Some of these issues are truly complex, involve many moving parts, and require that many factions which he needs (e.g., inside the CIA) be placated. Taking some time is reasonable. The complaint is not that Obama has failed to move quickly enough to repudiate Bush/Cheney abuses. Virtually nobody is arguing that.
Rather, the criticisms are grounded in the opposite premise: these cases which have provoked objections are all cases where Obama has already taken affirmative actions to preserve and defend Bush/Cheney policies. In the State Secrets case, for example, the Obama DOJ explicitly rejected the ACLU’s offer for more time, declaring they do not need or want more time, that they have had ample time to review the issues and have decided that they believe in the Bush/Cheney theory of what the State Secrets privilege allows. Here’s what Greg Craig told Savage about why the Obama DOJ embraced Bush’s State Secrets theory:
Mr. Craig said Mr. Holder and others reviewed the case and “came to the conclusion that it was justified and necessary for national security” to maintain their predecessor’s stance.
Can that be any clearer? Not even the Obama DOJ is claiming they needed more time. They’re saying they had all the time they needed, so Obama supporters should really stop trying to defend them by offering up excuses that the Obama administration itself rejects.
* * * * *
The bottom line is this: most of the key civil liberties and Constitutional questions that linger from the dark Bush/Cheney era remain unresolved thus far. Obama has not yet embraced or rejected most of them. And that is by design. There was that first week of Executive Orders that made some nice symbolic gestures and, in some cases, took some tangible steps. In other cases, the Obama administration has already evinced some of the truly disturbing tendencies of its predecessors. But overall, the truly controversial and weightiest questions have been pushed off to the future (e.g., he ordered Guantanamo closed but has not yet said whether he wants to retain the power to imprison accused Terrorists without a real trial). In sum: who and what Barack Obama is when it comes to the restoration of our core civil liberties and Constitutional protections remains to be seen. Those fights are still ones that will be waged.
There are people who believe that Barack Obama is kind, just and good, and thus are going to have a hard time believing that he’s embracing some of the most abusive Bush/Cheney policies even when he does it right in front of their faces. Others aren’t ever going to object to what Obama does in this area, because they believe (as Bush supporters believed about Bush) that there’s nothing really wrong if Obama wields these same powers since Obama is a kind-hearted ruler and therefore can be trusted not to abuse these powers. As DCLaw pointed out yesterday, people with that swooning mentality can’t be reached because they don’t really believe in the basic premise on which the country was founded, as enunciated by James Madison in Federalist 51:
Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.
We don’t place faith in the Goodness and kindness of specific leaders — even Barack Obama — to secretly exercise powers for our own Good. We rely instead on transparency and on constant compulsory limits on those powers as imposed by the Constitution, by other branches, and by law. That’s what it means to be a nation of laws and not men. When Obama embraces the same abusive and excessive powers that Bush embraced, it isn’t better because it’s Obama rather than Bush wielding that power. It’s the same. And that’s true even if one “trusts” Obama more than Bush.
A genuine reversal of the last eight years — meaning something more than just sand-papering the roughest edges — will come not from having a kinder-hearted and more magnanimous leader, but only from a restoration of the legal and Constitutional framework that makes a President’s magnanimity irrelevant, since his powers are exercised transparently and with real checks and limits. It remains very much an open question whether that will happen. There are some preliminary signs that it could, and some much more concrete signs that it won’t — at least not without a very concerted fight.
UPDATE: Greg Sargent had the same reaction I had to Greg Craig’s disturbing vow that Obama will do nothing to “undermine or weaken the institution of the presidency.” Self-evidently, it’s very hard to see how Bush/Cheney executive power abuses will be reversed if maximizing presidential power is their guiding principle.
In CQ yesterday, Tim Starks raised several issues similar to the ones Savage raised today, documenting that “on some of the most controversial intelligence issues of the Bush years, President Obama is either following in the footsteps of the former president or positioning himself to be able to do so later, if he chooses.” Like Savage did, Stark provides a balanced account, taking note of the positive steps Obama has taken. Still, all of these articles and episodes make conclusively clear that there is very real cause for concern about the direction in which they have been moving.
roger hollander 
A Heaven-Sent Rent Boy May 16, 2010
Posted by rogerhollander in Civil Liberties, LGBT.Tags: anti-gay, Civil Rights, elena kagan, frank rich, gay, gay adoption, gay marriage, gay rights, george rekers, homophobia, homosexuality, hypocrisy, laura bush, lesbian, lgbt, rentboy, roger hollander, same sex, same-sex marriage
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Op-Ed Columnist, www.nytimes.com
By FRANK RICH
Published: May 14, 2010
OF all wars, only culture wars offer the hope of sheer, unadulterated hilarity. Sex and hypocrisy were staples of farce long before America became a nation, and they never go out of style. Just listen to the roaring audience at the new hit Broadway revival of the perennial “La Cage aux Folles,” where a family-values politician gets his comeuppance in drag. Or check out the real-life closet case of George Rekers, who has been fodder for late-night television comics all month.
Rekers is in a class by himself even in the era of Larry Craig and Ted Haggard. A Baptist minister and clinical psychologist with a bent for “curing” homosexuality, the married, 61-year-old Rekers was caught by Miami New Times last month in the company of a 20-year-old male escort at Miami International Airport. The couple was returning from a 10-day trip to London and Madrid. New Times, which published its exposé in early May, got an explanation from Rekers: “I had surgery, and I can’t lift luggage. That’s why I hired him.”
Alas, a photo showed Rekers, rather than his companion, handling the baggage cart. The paper also reported that Rekers had recruited the young man from Rentboy.com, a Web site whose graphic sexual content requires visitors to vouch for their age. Rentboy.com — really, who could make this stuff up?
Much like the former Senator Craig, Rekers claims it was all an innocent mix-up. His only mistake, he told the magazine Christianity Today, was to hire a “travel assistant” without proper vetting. Their travels were not in vain. The good minister expressed gratitude that his rent boy “did let me share the gospel of Jesus Christ with him with many Scriptures in three extended conversations.”
This is a family newspaper, so you must supply your own jokes here.
But once we stop laughing, we must remember that culture wars are called wars for a reason. For all the farcical shenanigans they can generate, they do inflict real casualties — both at the micro level, on the lives of ordinary people, and at the national level, where, as we’re seeing right now, a Supreme Court nominee’s entire record can be reduced to a poisonous and distorted debate over her stand on the single culture-war issue of “don’t ask, don’t tell.”
Rekers is no bit player in these wars. Though he’s not a household name, he should be. He’s the Zelig of homophobia, having played a significant role in many of the ugliest assaults on gay people and their civil rights over the last three decades. His public career dates back to his authorship of a theoretically scholarly 1982 tome titled “Growing Up Straight: What Families Should Know About Homosexuality.” (I say theoretically because many of the footnotes cite his own previous writings.) And what did Rekers think that families should know? By Chapter 2, he is citing the cautionary tale of how one teacher’s “secret homosexual lifestyle most likely led to his murder.”
Rekers soon went on to become a co-founder with James Dobson of the Family Research Council, a major, if not the major, activist organization of the religious right as well as a power broker in the Republican Party. When the Miami scandal broke, the council’s current president, Tony Perkins, quickly tried to distance himself, claiming that he had to review “historical records” to verify who Rekers was and that his organization had “no contact” with him or “knowledge of his activities” for over a decade.
That historical record is hardly as obscure as Perkins maintained. Rachel Maddow of MSNBC found that only weeks before Rekers’s excellent European adventure, his name appeared on the masthead of an official-looking letter sent to some 14,000 school superintendents nationwide informing them that homosexuality is a choice that can be stamped out by therapy. The letter was from the “American College of Pediatricians” — a misnomer for what is actually a political organization peddling homophobic junk-science. Rekers was also on the board of another notorious peddler of gay “cures” — the National Association for Research and Therapy on Homosexuality, or Narth — until he resigned last week. Such groups have done nothing to stop homosexuality but plenty to help promote punitive “treatment” and suicidal depression among untold numbers of gay youths.
No less destructive has been Rekers’s role in maintaining the draconian Florida law prohibiting adoptions by gay couples and individuals, a relic of the Anita Bryant era. When the law was challenged in court two years ago, the state Attorney General Bill McCollum personally intervened to enlist Rekers as an expert witness to uphold it. Rekers charged $120,000 for his services — a taxpayers’ expenditure now becoming an issue in the Florida gubernatorial race, where McCollum is a Republican candidate to succeed Charlie Crist. A Miami judge ruled Florida’s law unconstitutional, and even now McCollum is appealing that decision.
Rekers was also an expert witness in a similar court case in Arkansas in 2004. That anti-gay-adoption law was also ruled unconstitutional. (His bill there was $200,000, but he settled for $60,000.) In 1998 Rekers was hired as an expert witness by the Boy Scouts to uphold its gay ban in a case before the District of Columbia Human Rights Commission. And then there’s Rekers’s cameo in the current Proposition 8 trial in California: one of his homophobic screeds can be found in the bibliography for the “expert report” by David Blankenhorn of the Institute for American Values, the star witness for the anti-same-sex-marriage forces.
Thanks to Rekers’s clownish public exposure, we now know that his professional judgments are windows into his cracked psyche, not gay people’s. But there is nothing funny about the destruction his writings and public activities have sown. His fringe views have not remained on the fringe. His excursions into public policy have had real and damaging consequences on a large swath of Americans.
The crusade he represents is, thankfully, on its last legs. American attitudes about homosexuality continue to change very fast. In the past month, as square a cultural venue as Archie comic books has announced the addition of a gay character, the country singer Chely Wright has come out as a lesbian, and Laura Bush has told Larry King that she endorses the “same” rights for all committed couples and believes same-sex marriage “will come.” All of this news has been greeted by most Americans with shrugs, as it should be.
But the rear-guard remnants of the Rekers crowd are not going down without a fight, and their focus on Elena Kagan has been most revealing. There are many grounds to debate Kagan’s nomination to the Supreme Court, wherever you are on the political spectrum. There are many questions about her views and record that remain unanswered. But from the get-go the preponderance of the debate on the right has been about her handling of military recruitment as dean at Harvard Law School. Here her history is unambiguous.
Despite her critics’ cries, Kagan never banned military recruitment of law students and never denigrated the military in word or deed. She followed Harvard’s existing (and unexceptional) antidiscrimination policy while a court battle played out over a Congressional act denying federal funds to universities barring military recruiters. She was so cautious — too cautious, I’d argue — that she did not join the majority of her own faculty in urging Harvard to sue the government over the funding law, limiting her action instead to the signing of an amicus brief.
She did declare that “don’t ask, don’t tell” was “a moral injustice of the first order.” Given that a Washington Post-ABC News poll in February showed that 75 percent of Americans want that policy rescinded — as do the president, the chairman of the Joint Chiefs of Staff and the secretary of defense — this is hardly a view out of the American mainstream. Yet if you went to the Web site of the organization Rekers co-founded, the Family Research Council, and clicked on “Tony Perkins’ Washington Update” last week, you’d have found a head shot of Kagan with the legend “Deep Ties With the Gay Agenda.” What those “deep ties” are is never stated. Indeed, Kagan said only last year that “there is no federal constitutional right to same-sex marriage.”
The Family Research Council’s line has been embraced by the non-fringe right, including some Republicans in the Senate. In mid-April, a full month before Kagan’s nomination was even announced, The Wall Street Journal preemptively hyped this plan of attack with a conspicuously placed news article headlined “Kagan Foes Cite Gay-Rights Stand.” The only foes cited were religious right organizations.
The real game became clear when that same week a former Bush aide and Republican Senate staffer published unsubstantiated rumors about Kagan’s private life in a blog at CBSNews.com. (It was taken down after White House denials.) Those rumors have chased all unmarried Supreme Court justices or would-be justices loathed by the right, whether Republicans like David Souter and Harriet Miers or the previous Obama choice, Sonia Sotomayor.
By late last week, double-entendre wisecracks about Kagan’s softball prowess were all the rage on Fox News and MSNBC. These dying gasps of our culture wars, like Rekers’s farcical pratfall, might be funnier if millions of gay Americans and their families were not still denied their full civil rights.