Home > News and Commentary > Another Court Jester For The King. Elena Kagan And The Imperial Continuum.

Another Court Jester For The King. Elena Kagan And The Imperial Continuum.

While Republicans may talk about their misgivings about Obama’s Supreme Court nominee Elena Kagan and her “progressive” views and the vapid religious right insinuates she may be a lesbian (to stir up their bigots), the real questions and issues surrounding Kagan’s views come from “real” progressives or liberals. In fact, it might be that she fits just fine in the imperial Bush/Cheney view and legacy that the executive branch is above or beyond the law, Constitutional restaints, as well as any international laws or treaties ratified by the U.S.. Many liberals, Constitutional scholars, and civil libertarians are viewing her more with skepticism and disappointment since she is replacing Justice Stevens who stood up firmly for the Bill of Rights, Constitutional separation of powers, habeas corpus, and due process under the rule of law. This is especially true since she agreed with Bush/Cheney concepts (unAmerican by nature and legal tradition) concerning indefinite detention during her confirmation hearings as Solictor General. Add in her inexperience and lack of legal writings during the time many of our constitutional and legal precepts were shredded during the previous administration has many worried.

Many misgivings by those concerned with the constitution, legal precedents, and the rule of law show that the possibility for a prolonged era of imperial presidencies may indeed lie ahead. There is this from Tony Mauro writing in the National Law Journal titled “Supreme Court Watchers Wonder: How Conservative Is Kagan?“,

Until then, the drumbeat of Kagan criticism may get louder as scrutiny of her brief record as solicitor general intensifies. 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 even Kagan’s own deputy Neal Kumar Katyal writing in the Yale Law Review titled “Internal Separation of Powers: Checking Today’s Most Dangerous Branch From Within” says

Elena Kagan’s recent defense of presidential administration concentrated on domestic policy, but her ideas suggest a criticism of the above proposals. She claims that presidential administration energizes a moribund bureaucracy:

“The need for an injection of energy and leadership becomes apparent, lest an inert bureaucracy encased in an inert political system grind inflexibly, in the face of new opportunities and challenges, toward (at best) irrelevance or (at worst) real harm. . . . This conclusion, of course, would be less sound to the extent that the political and administrative systems fail to impose adequate limits on the President’s exercise of administrative power. Then, the balance between friction and energy would tip toward the opposite extreme— away from the too broad curtailment of regulatory initiative to the too facile assertion of unilateral power. One reason not to fear this outcome relates to the President’s accountability to the public . . . .105”

But this view of the presidency, at least in the realm of foreign affairs, is as far from a description of contemporary reality as are Madison’s views, reprinted in the first paragraph of this Essay. Consider such claims in light of the facts that: (1) there is little public accountability when decisions are secret; (2) agency officials have been excluded from providing input on answers to key legal questions; (3) no neutral subordinate decision-maker exists; and (4) the administration has itself asserted that the brunt of these questions are beyond the purview of the courts altogether.

Michael Tomasky writing for the UK’s The Guardian titled “Elena Kagan” writes

One example: when she was being confirmed by the Senate for her current post, solicitor general, she defended the right of indefinite detention of terrorism suspects.

I think these things should be taken seriously. It follows a certain logic that she probably wouldn’t feel as free as John Paul Stevens did to offer striking dissents on such matters. Stevens was in his eighties and beyond caring what anybody thought of him. Kagan will want to be a force on the court, meaning (I’m just guessing here, but it makes sense if you read that Times profile) that she might want to be more of a conciliator, more of a power-player among the court’s nonet rather its thundering dissenting voice on these questions.

And finally there is this from the Heritage Foundation, a leading edge organization in the anti-democracy movement in the United States, from February 18th, 2009 in a piece on their blog titled “On Detainee Treatment, Sanity Still Prevailing at the White House

Last week we congratulated the Obama Administration for choosing the security of the American people over the bumper sticker slogans of the far left. Today, the New York Times details the Obama Administration’s continued prudence on some key national security issues:

During her confirmation hearing last week, Elena Kagan, the nominee for solicitor general, said that someone suspected of helping finance Al Qaeda should be subject to battlefield law — indefinite detention without a trial — even if he were captured in a place like the Philippines rather than in a physical battle zone.

Ms. Kagan’s support for an elastic interpretation of the “battlefield” amplified remarks that Attorney General Eric H. Holder Jr. made at his own confirmation hearing. And it dovetailed with a core Bush position. Civil liberties groups argue that people captured away from combat zones should go to prison only after trials.

In the shift from the 20th century to the 21st century, we have seen the United States go from world leader and its push as a nation of the rule of law at the Nuremberg Trials (thereby creating the Nuremburg Principles, the framework of current international law) to today’s international beligerent and the international barbaric disgrace of Guantanamo Bay, the prison at Bagram, and Abu Ghraib Prison. We have seen the state secrets privilege abused in denying victims of illegal torture their day in court, and to cover up high crimes of state as revealed in the case of Sibel Edmonds. Many of us sons and daughters of World War II veterans realize what separated us from the barbarian was the rule of law (not to create laws to subvert the rule of law). It is within this context many of us oppose Elena Kagan for the Supreme Court. How much further can we slip from freedom’s gaze?

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  1. themadjewess
    July 1, 2010 at 2:51 pm

    “Bigotry” is not against the law.

    • americancommentary
      July 1, 2010 at 3:11 pm

      It is if you act on it. There are fair housing laws, fair lending laws, red lining laws, the voting rights act, etc.

      • themadjewess
        July 1, 2010 at 3:25 pm

        How about just plain ol American Apple Pie, sugar?
        How about NO VOTING for NON Citizens and welfare recepients that do ZERO to contribute to society?
        Thats FAIR.
        Bigorty and racism-BOTH- not against the LAW, you cannot stop people with MIND CONTROL.
        Which brings me to the point;
        Why is the DEM party so racist with that KKK stuff, you know, Maggie Sanger, planned parenthood, KKK, Sen. Byrd who just croaked, he was with the KKK for YEARS.
        Wow, such racists in the demo!

  2. themadjewess
    July 1, 2010 at 3:27 pm

    BTW:
    Sarah Palin-LIBERAL, ty—NO!

    • americancommentary
      July 1, 2010 at 3:56 pm

      Don’t know what you mean by Sarah Palin-liberal. Even the DLC that controls the Democratic party isn’t liberal. Maybe you mean she isn’t libertarian. Anyway, non citizens do not vote and hopefully, you’ll never need income assistance. As far as Byrd goes, he changed and recanted his past and voting patterns.

      • themadjewess
        July 1, 2010 at 5:47 pm

        As far as Byrd goes,

        Unless Byrd had a “Come To Jesus Moment” he remained as he was when I was a little girl; One of the leaders of the KKK, he is and was always a race-monger, not that it is against the law, but the hypocrisy runs deep in BOTH parties that BOTH hate Americas guts.

  3. themadjewess
    July 1, 2010 at 5:45 pm

    you’ll never need income assistance

    Honey, I have practically sold my derierre so that I would NEVER have to live off of the govt or state.
    Sarah Palin is a liberal. She is with the left wing, her recent contribution to the LOUSY GOP with her gf in Cali LOVES Ms. Hillary C. THATS A LIB.

    • americancommentary
      July 1, 2010 at 9:59 pm

      There is no liberal party with political power in the United States. The Green Party has no power and the only liberals in the two major parties are in the Progressive Caucus in the House and Bernie Sanders in the Senate and they don’t hold any real deciding power in the Democratic Party. However, I can tell you view things differently.

  4. themadjewess
    July 1, 2010 at 11:33 pm

    There is no liberal party with political power in the United States

    They are NOT ‘liberals’, they are had-core Bolshevik-Marxists and Progressive destroyers. I know this, because I have spent most of my life around these people in NYC, and Monterey, CA. I am on their email threads, and they want this nation to go completely COMMUNIST. Thats their plans, world domination through Communism.

    Liberalism is a JOKE. these people are hard core, they have every intention of demanding the people to subject themselves to soft-style Communism.

    • americancommentary
      July 12, 2010 at 7:29 pm

      What we have is what we had in the late 1890’s through the 1920’s which led to the Great Depression. That is a robber baron system with cronyism and no or weak regulatory regime. Progressive Teddy Roosevelt would have broken up “too big to fail” and progressive Franklin Roosevelt would reregulate the financial sector which has been taken away by both parties over the last 30 years and has led us into our current mess.

  5. themadjewess
    July 12, 2010 at 7:33 pm

    Very right, both parties=evil.

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