Obama’s Kagan Choice Will Push Court to the Right May 10, 2010Posted 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
The latest on Elena Kagan May 9, 2010Posted by rogerhollander in Barack Obama, Criminal Justice.
Tags: Clinton, democrats, elena kagan, executive power, glenn greenwald, Goldman Sachs, imperial presidency, judge stevens, obama appointment, progressives, roger hollander, supreme court
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I’ve laid out my case against Elena Kagan as thoroughly as I could, but with several anonymous (i.e., unreliable) reports percolating that she’s the likely choice and could be announced as early as Monday, it’s worthwhile to note several recent items from others pertaining to her selection:
(1) University of Colorado Law Professor Paul Campos, who previously expressed shock at the paucity of Kagan’s record and compared her to Harriet Miers, has a new piece in The New Republic entitled (appropriately): “Blank Slate.”
(2) Digby examines what a Kagan selection would reveal about Obama, and she particularly focuses on Kagan’s relationship to Goldman Sachs. That relationship is relatively minor, but it is illustrative in several ways and will certainly be used by Republicans to advance their attacks on this administration as being inextricably linked with Wall Street. The Huffington Post‘s Sam Stein has more on the Kagan/Goldman Sachs connection.
(3) Following up on the article published yesterday in Salon by four minority law professors — which condemned Kagan’s record on diversity issues as “shocking” and “indefensible for the 21st Century” — Law Professor Darren Hutchinson of American University School of Law today writes that Kagan’s record is “abysmal.”
Regardless of your particular views on these matters, that diversity is both vital and fair in the hiring process has long been a central plank in progressive thinking. It takes little creativity to imagine what Democrats would say about a Republican Supreme Court nominee with a hiring record similar to Kagan’s. The question is whether they will be as consistent as these law professors are in applying their claimed beliefs to their own side. This is the issue that caused Linda Monk to rescind her endorsement of Kagan. Will Kagan-defending progressives now suddenly say that diversity is irrelevant? Will they try to claim that there were no qualified minorities for the Harvard Law School faculty? How will they reconcile everything they’ve always said about diversity with Kagan’s record as Dean?
(4) This headline, from law.com, is a darkly amusing and quite revealing one to read about the Obama White House’s front-runner to replace John Paul Stevens: ”Supreme Court Watchers Wonder: How Conservative Is Kagan“?
(5) Law Professor Jonathan Adler persuasively argues why Diane Wood would be easier to confirm than Elena Kagan.
(6) The New York Times‘ Charlie Savage today explains that executive power is one key area where Obama’s choice could bring about major changes to the Court, given that his selection would replace Justice Stevens, who was so stalwart about imposing limits on such power. As Savage writes, Kagan’s record (to the extent such a thing even exists) ”suggests she might generally be more sympathetic toward the White House than Justice Stevens.”
(7) Perhaps most revealing of all: a new article in The Daily Caller reports on growing criticisms of Kagan among “liberal legal scholars and experts” (with a focus on the work I’ve been doing), and it quotes the progressive legal scholar Erwin Chemerinsky as follows: ”The reality is that Democrats, including liberals, will accept and push whomever Obama picks.” Yesterday on Twitter, Matt Yglesias supplied the rationale for this mentality: ”Argument will be simple: Clinton & Obama like and trust [Kagan], and most liberals (myself included) like and trust Clinton & Obama.”
Just think about what that means. If the choice is Kagan, you’ll have huge numbers of Democrats and progressives running around saying, in essence: ”I have no idea what Kagan thinks or believes about virtually anything, and it’s quite possible she’ll move the Court to the Right, but I support her nomination and think Obama made a great choice.” In other words, according to Chemerinksy and Yglesias, progressives will view Obama’s choice as a good one by virtue of the fact that it’s Obama choice. Isn’t that a pure embodiment of mindless tribalism and authoritarianism? Democrats love to mock the Right for their propensity to engage in party-line, close-minded adherence to their Leaders, but compare what conservatives did with Bush’s selection of Harriet Miers to what progressives are almost certain to do with Obama’s selection of someone who is, at best, an absolute blank slate.
One of the very first non-FISA posts I ever wrote that received substantial attention (uniformly favorable attention from progressives) was this post, from February, 2006, about the cult of personality that subsumed the Right during the Bush era. The central point was that conservatives supported anything and everything George Bush did, regardless of how much it comported with their alleged beliefs and convictions, because loyalty to him and their Party, along with a desire to keep Republicans in power, subordinated any actual beliefs. Even Bill Kristol — in a 2006 New York Times article describing how Bruce Bartlett had been ex-communicated from the conservative movement for excessively criticizing George Bush — admitted that personal allegiance to Bush outweighed conservative principles in the first term and that “Bush was the movement and the cause.”
To say that ”Democrats, including liberals, will accept and push whomever Obama picks,” based on the rationale that “Clinton & Obama like and trust her, and most liberals (myself included) like and trust Clinton & Obama” — even if they know nothing about her, even if she might move the Court to the Right — seems to me to be an exact replica of what I described four years ago.
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.
Tags: anti-net neutrality, bell, broadband deployment, broadband services, chris bowers, fcc, federal communications, internet, internet neutrality, internet nondiscriminatory, James Clyburn, Media, mignon clyburn, net neutrality, obama appointment, president obama, roger hollander, sprint nextel, verizon
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www.opednews.com, Posted on May 2, 2009
There is a disturbing possibility that President Obama has put his excellent open media and network neutrality platform at risk with his latest–and last–Democratic FCC appointment, Mignon Clyburn.
There are five seats in the FCC, and “only three commissioners may be members of the same political party.” For the next five years, the FCC will have a 3-2 Democratic majority, once the remaining Republican open seat has been filled. That makes this appointment by President Obama the key swing vote that will largely determine FCC policy and regulation over the next five years.
The reason Mignon Clyburn is such a worrying pick is that she is the daughter of South Carolina Representative James Clyburn, who has an anti-Net Neutrality record:
In 2006, Representative Clyburn voted against H. Amdt. 987 to ensure that network neutrality clauses be added to the Title VII of the Communication Act of 1934. The amendment required all broadband service provides to “operate its broadband network in a nondiscriminatory manner so that any person can offer or provide content, applications, and services through, or over, such broadband network with equivalent or better capability than the provider extends to itself or affiliated parties, and without the imposition of a charge for such nondiscriminatory network operation.”
While Mignon might not have the same views as her father, what we do know about her ranges from unclear to unpromising:
Here’s what we do know. Clyburn serves on the South Carolina public service commission (which is considered very pro-Bell). She is virtually unknown by knowledgeable telecom people. And, she seems to have focused more on energy issues than telecom, if early accounts are to be believed. Plus, Verizon and the cable trade association are very happy. All in all, not good.
And check out this creepy comment that appeared below the Washington Post story on Clyburn’s appointment:
At Sprint Nextel, we believe that Mignon Clyburn would bring experience, deep policy understanding and the perspective of a state utility commissioner to the FCC. We have worked with her in South Carolina where she has served on that state’s Public Service Commission and we look forward to working with her again on any number of issues including restoring competition to the failed special access markets that are stifling broadband deployment in our country.
Feel reassured about the new deciding FCC vote on net neutrality and open media yet? This is a dangerous and risky appointment by President Obama that will need extensive clarification in the coming days and weeks leading up to her confirmation hearing. It seems possible that more information will be revealed that will demand a withdrawal of the appointment.
Media is one of the five most dominant ideological institutions in our country (work, school, worship, and family/demography being the other four). Also, the rise of self-publishing and social networking options created by the network neutral Internet has created a cultural explosion that is both unparalleled in human history and helped turn the country in largely progressive. This may sometimes seem like a wonky boutique issue, but over the long-term it is as essential to the progressive movement, and indeed an improved world, as any other area of policy.
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