So Obama has decided to nominate Sollicitor General Elena Kagan for Supreme Court Justice. We have blogged about the prospect of a Kagan nomination here and here.
In judging this nomination, it is important to remember who is being replaced. Justice John Paul Stevens, although nominated by President Ford, was a member of the “liberal wing” of the Supreme Court. That meant that in the years of the Bush administrations he did not support the relentless growth of executive power, and was a staunch supporter of civil liberties. On this he was a crucial vote, and if any new cases on these matters come up (and they will, in the coming years), Elena Kagan will be this crucial vote.
I always thought that Barack Obama was elected as a rejection of the Bush-Cheney approach to the “War” on Terror, America’s stance in the world, and the growth of a state in which the rule of law is subjected to the demands of executive power. By now it is clear that this is not what he is; rather, he’s a moderate-to-conservative president who is afraid to show leadership on crucial issues of rights and liberties, and is eager to appease the most radical conservative of Republicans in order to retain his “postpartisan” and “pragmatic” crafted image.
I’d say that the nomination of Kagan fits into this evolution of the Obama administration, although I’ve backtracked a little. Basically, she’s not as good as Diane Wood on the issue of executive power versus civil liberties, but she’s more of a blank slate. Nobody – Democrats nor Republicans – knows what her views on a host of matters are. So that’s worrisome in itself, and as Greenwald mentions, it shows the personality cult that among a lot of progressives and liberals still surrounds Barack Obama (we just have to trust that he’s right about this). Therefore we get NYT articles that say that he was not looking for a “liberal firebrand”, that he is taking “the middle of the road”, and so forth.
So, to compare what could have been with what we now get, see this comparative profile by Charlie Savage of Diane Wood and Elena Kagan:
Of the three, Judge Wood, of the appeals court in Chicago, has the clearest record in favor of protecting civil liberties and taking a skeptical stance toward executive power. In a 2003 essay, she spoke out against approaches to counterterrorism that she said posed “a significant threat to the continued observance of the rule of law” — like giving noncitizens fewer due process rights than citizens and sacrificing individual privacy to foster intelligence-gathering.
“In a democracy, those responsible for national security (principally, of course, the executive branch) must do more than say, ‘trust us, we know best’ when they are proposing significant intrusions on liberties protected by the Constitution,” Judge Wood wrote.
And in a 2008 essay, Judge Wood wrote that “the principle is well established that extraordinary tribunals, such as military commissions, are not authorized to operate if the normal courts are open for business.”
That stance could put Judge Wood at odds with the Obama administration, which is using military commissions instead of civilian trials for some terrorism suspects. However, her remark came in the context of prosecuting civilian citizens arrested on domestic soil after a natural disaster, and might not extend to noncitizens arrested abroad and accused of being enemy fighters.
Ms. Kagan (…) has a mixed record on executive powers, but one that suggests she might generally be more sympathetic toward the White House than Justice Stevens.
And that is based on a 2001 law review article of hers about centralized control over regulatory agencies, but really, we just don’t know.
And then, let’s hear it from civil liberties and human rights NGO’s (you know, those exclusively “liberal” and “progressive” causes):
Advocates for human rights and other liberal causes who are upset at the Obama administration for continuing Bush-era policies may take their frustration out on Kagan.
“From the perspective of those who have been advocating change from Bush policies, she has been a disappointment,” said Tina Foster of the International Justice Network, who argued against Kagan’s deputy Neal Katyal over detention policies in an appeal in January.
“She would spell very bad news” if she became a Supreme Court justice, said Vince Warren, executive director of the Center for Constitutional Rights, which has long challenged Bush and now Obama detention policies. “We don’t see any basis to assume she does not embrace the Bush view of executive power.”
At the Electronic Frontier Foundation, senior staff attorney Kevin Bankston called the Obama administration’s stance on state secrets and national security wiretapping “a grave disappointment, particularly for those who took Obama’s promises seriously.” Bankston cautioned he is not certain how involved Kagan herself has been in the positions the department has taken on these issues.
And finally, check out this call to arms from blogger digby about the reluctance of contemporary Washington DC power brokers (including Obama) to nominate anyone important whom Republicans could view as too “liberal”, and the hypocrisy when it comes to applying the same standards the other way around:
So I’m told by various people that Kagan is the only confirmable possibility. I would love to know why that should be true. The Republicans have had little trouble since Bork confirming far right federalist society clones, whether they had a Democratic or Republican Senate. It doesn’t seem logical to me that there isn’t room for an unabashed liberal on the court with a 59 vote majority in the Senate.
Kagan is an unknown quantity, unlike Roberts and Alito who were clearly both conservative a highly political. Yet Bush managed to get them confirmed. I guess I just don’t understand the double standard when it comes to Democrats and I refuse to capitulate to the common wisdom that says no Democratic president can ever confirm a known liberal.
Moreover, I think Supreme Court confirmation battles are ideologically instructive for the nation and are one of the few times when it’s possible for people to speak at length about their philosophical worldview. Liberals have to stop running from this. Allowing the other side to define us is killing us.
In a decisive and vulgar 7-2 ruling, the U.S. Supreme Court once again upheld the constitution’s First Amendment this week, calling the freedom of expression among the most “inalienable and important rights that a motherfucker can have.”
“It is the opinion of this court that the right to speak without censorship or fear of intimidation is fundamental to a healthy democracy,” Justice Ruth Bader Ginsburg wrote for the majority. “Furthermore, the court finds that the right to say whatever the hell you want, whenever the hell you want, is not only a founding tenet, but remains essential to the continued success of this nation.”
Added Ginsburg, “In short, freedom of speech means the freedom of fucking speech, you ignorant cocksuckers.”
During oral arguments, Charleston’s chief counsel Dan Roy said his clients could restrict any public speech they deemed offensive, an argument quickly dismissed by Justice John Paul Stevens, 90, who turned to his colleagues and made a repeated up-and-down hand motion intended to simulate masturbation.
Justice Clarence Thomas, who voted with the majority, wrote a concurring opinion in which he made little mention of established court precedents but emphasized that he himself had viewed materials “way, way nastier than this stupid play.”
“I don’t know what kind of bullshit passes for jurisprudence down in the 4th Circuit these days,” Thomas wrote. “But those pricks can take their arguments about speech that ‘appeals only to prurient interests’ and go suck a dog’s asshole.”
Writing in dissent, however, Justice Antonin Scalia contemplated the limits of the constitutional guarantee of free speech.
“The court has an interest in protecting meaningful human communication, which is jeopardized when every other word out of someone’s mouth is ‘F this’ or ‘F that,’” Scalia wrote. “In practice, such an expansion of free expression becomes far too unwieldy and large to accommodate.”
To which Justice Ginsberg immediately replied, “Yeah, that’s what his mom said.”
“This is a historic victory for free speech, and I wouldn’t be surprised if, a hundred years from now, the hallowed walls of this court bear an inscription taken from the eloquent decision handed down today,” lead defense attorney Carl Huddleston said. “Particularly the phrase ‘That which erodes human rights serves to erode humanity, fuckface.’”
Scott Lemieux at The American Prospect stakes out how President Obama now has the opportunity – very likely the only opportunity – to retain the current balance in the Supreme Court, and nominate a liberal in the mold of retiring Justice John Paul Stevens, and his predecessors Louis Brandeis and William Douglas:
The pending resignation of Justice John Paul Stevens gives Barack Obama the chance to make his second appointment to the Supreme Court. It also represents what is likely to be his best chance to provide a foothold for a strong liberal presence on the Court to represent the reactionary foursome of Antonin Scalia, Clarence Thomas, John Roberts, and Samuel Alito.
Here are three crucial reasons why Obama should nominate a sophisticated and tough-minded progressive along the lines of Stanford law professor Pamela Karlan, Legal Adviser of the Department of State Harold Koh, or Judge Diane Wood of the 7th Circuit Court of Appeals:
Justice Stevens has recently remarked that, “with the possible exception of Ruth Ginsburg,” every judicial appointment since Stevens himself has moved the Court to the right. (Stevens himself replaced the acerbic left-libertarian William O. Douglas, one of the most liberal members in the Court’s history.) Granted, that Ginsburg is an exception is more than possible: She has certainly had a more liberal record than Byron White, a dissenter in Miranda and Roe v. Wade and author of the Court’s infamous (and now overruled) opinion in Bowers v. Hardwick, which concerned the criminalization of sodomy. Otherwise, though, Stevens is correct.
And while the Court’s dramatic shift to the right in some measure represents electoral trends favoring the Republican Party, the random nature of the appointments process and America’s anachronistic electoral system have exaggerated this shift. Conservative Republicans now dominate the Court although the Democratic Party has won the popular vote in five of the last nine presidential elections. And as reflected by the fact that a moderate Republican like Stevens became the leader of the Court’s liberal wing, the nation’s highest tribunal completely lacks a liberal in the mold of Douglas, Thurgood Marshall, or William Brennan. Presumptive front-runner Elena Kagan, while an attractive candidate in some respects, has a record on civil liberties and executive power that strongly suggests she would not be a liberal in this mold either. This would be bad for the development of progressive constitutional values.
Given the prevailing economic conditions, the question is not whether the Democrats will lose Senate seats in the 2010 midterms, but how many. If Obama is going to put a strong liberal on the Court, the window of opportunity will probably close in November. Particularly with Ruth Bader Ginsburg’s retirement almost certain to come during Obama’s first term, any moderates that Obama would be interested in nominating should be saved for later, when the margin in the Senate is narrower.
But, realistically, with Barack Obama turning out to be the moderate-to-conservative president that he is, fond of expanding executive power, it is just not very likely to happen.
The frontrunner, on the contrary, is the aforementioned Elena Kagan. Check out Glenn Greenwald’s profile on her at Salon.com. If you’re still an Obama supporter, you should by now be thoroughly disappointed, perhaps even desperate. Please think about this: the person that Obama nominates and the Senate confirms, will shape the American political-constitutional scene for decades to come. The stakes are simply enormous. And if this person turns out to be someone who is as pro-executive power as Bush-Cheney, Obama and four Justices of the current Supreme Court are, and tip the scale, then the scene is set for future Bushes and Cheneys to, well, play around a bit on the playground called the world. And it will be thanks to Obama.
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).
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.
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?
There had been a buzz about this for some time, but now it’s officially announced: Justice John Paul Stevens (89), leader of the liberal wing of the Supreme Court, will after 34 years retire at the end of this term. More so than with the previous departure during the Obama administration, that of moderate Justice Souter who got replaced by the moderate Sotomayor, who’s appointed now is extremely important, as it might tip the scale of conservative-liberal views on the Court.
See our earlier analysis here.
The most important question facing the American political-judicial system (and the world) right now is whether the trend towards an overarching executive power that in an unending War on Terror can do pretty much everything it wants, even against its own citizens, will be continued. Justice Stevens was very steadfast in his opposition to this trend. President Obama, on the other hand, is very committed to a continuation of this shift from the rule of law towards lawlessness, and a new SCOTUS apppointee might be so as well.
The White House has been quietly evaluating potential nominees for months. Among those rumored to be in contention for the nomination are Solicitor General Elena Kagan and several appeals court judges, including Diane Wood and Merrick Garland.
Justice Stevens’s stature as the bench’s unlikely liberal voice grew greater as the Bush administration’s policies on terrorism and detainees translated into a string of cases that came before the court, and as the court itself moved further to the right, as Chief Justice John G. Roberts Jr. succeeded Chief Justice William H. Rehnquist in 2005 and Justice Samuel A. Alito Jr. took the place of Justice Sandra Day O’Connor the following year. Though he now found himself more often in the minority than any of his colleagues, Justice Stevens nevertheless helped shape the majority for a number of important decisions.
Justice Stevens’s plainspoken style has characterized the last years of his tenure. In cases involving prisoners held without charge at the American naval base at Guantánamo Bay, Cuba, and the mentally retarded on death row, his version of American justice propelled by common sense and moral clarity commanded a majority.
In perhaps the most significant case, Hamdan. v. Rumseld, he repudiated the Bush administration’s plan to put terrorism suspects held at Guantánamo on trial by military commissions. He concluded his 72-page majority opinion with the blunt statement that “the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction.”
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.