With all the justified excitement about Obama’s historic success in passing healthcare reform legislation, it is good not to forget that his record on civil rights and counterterrorism policies is still dismal. And meanwhile, a major event is about to happen. Supreme Court Justice John Paul Stevens, 90 years old, appointed by President Ford and leader of the so-called “liberal wing” of the Court, will retire sooner or later. More so than in the case of Sotomayor, who replaced Souter as an essential moderate Justice, the new nominee will likely shift the balance of political-judicial views in the Supreme Court.
Now, names that continue to pop up as favorite Obama nominees are law professor and current Chief of the Office of Information and Regulatory Affairs Cass Sunstein (a personal friend of Obama), and Solicitor General Elena Kagan. Concerning the first, Glenn Greenwald has a devastating profile on Salon.com. During the Bush administration, the Democrat Sunstein emerged as one of the most vocal defenders of unitary executive power, military commissions and illegal wiretapping. Imagine the prospect of having this guy as Supreme Court Justice?
So this is something to keep looking into. Greenwald:
In 2002, at the height of controversy over Bush’s creation of military commissions without Congressional approval, Sunstein stepped forward to insist that “[u]nder existing law, President George W. Bush has the legal authority to use military commissions” and that “President Bush’s choice stands on firm legal ground.” Sunstein scorned as “ludicrous” the argument from Law Professor George Fletcher that the Supreme Court would find Bush’s military commissions without any legal basis. Four years later — in its Hamdan ruling — the Supreme Court, with Justice Stevens in the majority, held that Bush lacked the legal authority to create military commissions without approval from Congress, i.e., the Court (and Stevens) found Bush lacked exactly the “legal authority” which Sunstein vehemently insisted he possessed. Had Sunstein been on the Court then instead of Stevens, that decision presumably would have come out the opposite way: in favor of Bush’s sweeping claims of executive authority.
Worse still, in 2005, Sunstein became the hero of the Bush-following Right when, in the wake of revelations that the Bush administration was illegally eavesdropping on Americans, he quickly proclaimed that Bush was within his legal rights to spy without warrants in violation of FISA. Sunstein defended Bush’s NSA program by embracing the two extremist arguments at the core of Bush/Cheney lawlessness: that (1) the AUMF silently authorized warrantless eavesdropping in violation of FISA and, worse, (2) the President may have a plausible claim that Article II ”inherently” authorizes warrantless eavesdropping regardless of what a statute says.
In 2008, Sunstein became the leading proponent of the Bush/Cheney-sponsored bill to legalize Bush’s warrantless eavesdropping program and to immunize lawbreaking telecoms, a bill which Obama — advised by Sunstein — ended up voting for in violation of his pledge to filibuster.
In reviewing Sunstein’s domestic policy book, Nudge, Matt Stoller pointed out that several of his ideas are “exactly 100% out of the conventional wisdom from the 1960s conservative movement,” that he steadfastly exempts the Pentagon and the Surveillance State from claims that the Government is too large, and even holds up Rahm Emanuel as a “liberal,” just to give a sense of how Sunstein views the political spectrum. As I discussed earlier this year, Sunstein also proposed a consummately creepy plan for the government to “cognitively infiltrate” online discussions which spout views that Sunstein deems false.
The person who many believe is the leading candidate to replace Stevens — Obama’s Solicitor General Elena Kagan — has a record that is almost as bad as Sunstein’s when it comes to executive power abuses, civil liberties, and “War on Terror” radicalism. Unlike the Sotomayor-for-Souter substitution, which essentially maintained the Court’s balance, replacing Stevens with the likes of Cass Sunstein or Elena Kagan would move the Court dramatically to the Right, especially in the areas of executive power and civil liberties, where a fragile 5-4 majority has provided at least some minimal safeguards over the last decade. Whatever else one might want to say about Cass Sunstein — or, for that matter, Elena Kagan — it is simply false to claim that they would fit within the so-called “liberal” wing of the Court on matters of executive power and civil liberties. The replacement of John Paul Stevens could have a very radical impact on the Supreme Court, and it’s certainly not too early to begin combating pernicious myths about the leading candidates.