Wednesday, May 12, 2010

Not Ecstatic About Elena Kagan

Kagan talking about Obama during a 2005 Celebration of Black Alumni at Harvard Law School:

I thought for sure that Obama would choose a safe pick for the Supreme Court - someone non-controversial. But it turns out that he took a risk. Kagan is a nominee who is drawing criticism from both Progressives and Conservatives. Kagan's nomination seems to resemble something closer to cronyism than opportunity for Obama to do something for someone that he knows or has worked with in the past. Not very different from David Axelrod, Rahm Emanuel, Arne Duncan, Valerie Jarrett, etc. Yes, she may be qualified, but if he were interested in choosing someone who did not necessarily have experience on the bench, then there were certainly stronger candidates that he could have chosen. The list of scholars, constitutional lawyers, and those who have both litigation and academic credentials is quite long. Kagan probably falls somewhere near the middle or the bottom of that list. I'm o.k. with a nominee without Judicial experience.... as long as the person is not a politician. But Kagan is probably the closest thing to a politician that Obama could have nominated, without nominating an actual politician. Remember, much of her experience comes from serving in the executive branch.

Critics have been expressing concern about the lack of a paper trail for Kagan...that we don't have much to go on. But I think there is plenty of information available. I, for one, have seen just about all that I need to see in order to raise doubts about this nominee. I am bothered more by the little that we do know about her, as opposed to what we don't know. What bothers me the most is her position on civil liberties. I am not much of a civil liberties critic, but in this case, (and since they seem to be under attack lately) questions should be raised. Kagan is on record agreeing with Bush era policy regarding indefinite detention and enemy combatants. Of course the Bush rules on enemy combatants were thrown together to avoid providing due process and standard criminal trials to those captured in Afghanistan. That may have been a legitimate concern at the time, because there was no functioning Afghan government, Bush didn't want to use the Geneva Convention rules, and didn't want to set up a system through the UN or ICC. Since then, however, Republicans have tried to apply these provisions to militants still captured in Afghanistan and Iraq, those captured in other parts of the world, and terror suspects captured in the U.S. There is a huge difference between what Donald Rumsfeld was trying to do in 2002-2003 and what Republicans are trying to do now.

Kagan appears to believe that military tribunals (which the Federal courts have already determined were unconstitutional under Bush) are sufficient for providing due process. Worse.... Kagan believes that the "battlefield" in the war on terrorism can be anywhere that we decide it is...and anyone picked up on that battlefield could be subject to some sort of alternative due process legal system. (And I thought that the Obama Administration decided to get rid of the term "War on Terror". It looks like he may be ready to resurrect that too.... all for some sort of political expediency). A Supreme Court nominee who is so shaky about fundamental civil liberties and the Constitution should be examined with caution IMO.

Here is her testimony touching on these issues, taken from her 2009 confirmation for Solicitor General:

Her connections to former Bush attorney Jack Goldsmith should also raise some eyebrows. And it may be hard to package Elena Kagan as someone who understands the lives of ordinary Americans when she has worked for the likes of Goldman Sachs in the recent past, although only in an advisory role. She doesn't strike me as a champion of the little guy, and few Supreme Court nominees actually come from the real world and could take on that role anyway. Once Kagan is confirmed, the entire Court will consist of justices with Ivy League University backgrounds.

If Obama was hoping that a lack of a paper trail would make confirmation easier, he may have miscalculated. I don't think Kagan's confirmation will be as easy as the Administration had hoped. But I see no obstacle that would stop her from being confirmed.

With that said.... I am not completely against this nominee.... but I am not for her either. I think that a better choice could have been made. The last time I felt this kind of strong ambivalence about a Supreme Court pick, was when George H. W. Bush nominated Clarence Thomas. I was actually offended by Thomas's pick as a replacement for Thurgood Marshall. But I had the ambivalence too because I felt that if Bush wanted to really pick a highly qualified minority, there were many other more qualified candidates that he could have chosen.


Anonymous said...

I am of the opinion that the Supreme Court is setting itself up for a legal challenge, as to whether or not 1) their opinions are in fact biased due to their common Ivy League education, and 2) they are engaging in discrimination, by limiting the Court to Ivy League Graduates.

The following applies to Kagan, just as it did to Sotomajor.

This editorial was created by 160 Associated Press readers under a Creative Commons Share-Alike Attribution License 3.0 using MixedInk's collaborative writing tool. For more about how it was created, see here. It can be republished only if accompanied by this note.

Obamas Appointment of Sotomayor Fails to Offer Educational Diversity to Court.

Sotomayor does not offer true diversity to our Supreme Court. The potential power of Sotomayor's diversity as a Latina Woman, from a disadvantaged background, loses its strength because her Yale Law degree does not offer educational diversity to the current mix of sitting Judges. Once she walked through the Gates of Princeton and then Yale Law School she became educated by the same Professors that have educated the majority of our current Supreme Court Justices, and our Presidents.

Diversity in education is extremely important. We need to look for diversity in our ideas, and if our leaders are from the same educational background, they lose the original power of their ethnic and gender diversity. The ethnic and gender diversity many of our current leaders possess no longer brings a plethora of new ideas, only the same perspective they learned from their common Ivy League education. One example of the common education problem is that Yale has been heavily influenced by a former lecturer at Yale, Judge Frank, who developed the philosophy of Legal Realism. Frank argued that Judges should not only look at the original intent of the Constitution, but they should also bring in outside influences, including their own experiences in order to determine the law. This negative interpretation has influenced both Conservatives and Liberals graduating from Yale. It has been said that Legal Realism has infested Yale Law School and turned lawyers into political activists.

A generation of appointees with either a Harvard or Yale background, has the potential to distort the proper interpretation of our Constitution. America needs to decentralize the power structure away from the Ivy League educated individual and gain from the knowledgeable and diverse perspectives that people from other institutions can provide. We should appoint Supreme Court Justices educated from amongst a wider group of Americas Universities.

Harvard -

Chief Justice John Roberts
Anthony Kennedy
Antonin Scalia
Stephen Breyer
Ruth Bader Ginsburg (Harvard, Columbia)


Samuel Alito - Yale JD 1975
David Souter
Clarence Thomas - Yale JD 1974
Sonia Sotomayor - Yale JD 1979

Northwestern Law School.

Justice John Paul Stevens

The Presidents we have elected for the last twenty years, have themselves been Harvard or Yale educated. This has the potential to create an even more closed minded interpretation of our laws.

Yale - Bush Sr. - 4 years
Yale Law - Clinton - 8 years
Yale - Bush, Jr. - 8 Years
Harvard Law - Obama - 4 - 8 years

When we consider that our Nation has potentially twenty - eight years of Presidential influece from these two Universities, as Americans, we should look long and hard at the influence Yale and Harvard have exerted on our nation's policies. Barack Obama promised America Change, but he has continued the same discriminatory policy by appointing a Yale graduate over many qualified candidates that graduated from other top Colleges and Universities in America.

rikyrah said...

I believe he had BETTER choices. Period.

not enthused in the least with this choice.

ecthompson said...

the problem with a legal challenge to the Supreme Court is that we have such a small data set. When you only have nine people it's hard to get a good trend. Now, I agree that other candidates should be considered and should be appointed but I think it hard to argue that they're better candidates than Obama has picked.

Here's the problem, I think it is easy to say that there are 50 or 100 people that are as qualified as Barack Obama's nominee.but, according to the Constitution, they really aren't any specific criteria to be a Supreme Court judge other than being an American citizen.

The problem with Mister or Ms. anonymous' compliant is that he or she assumes that everyone educated in the Ivy League thinks the same way. There is no evidence to support this fact. Alberto Gonzales and Linda Monk both went to Harvard. They were both in law school at the same time but I think you would be hard-pressed to find two people that approach the law from two different points of view. The case has merit.

Finally, Elena Kagan is it safe, middle-of-the-road choice for the Supreme Court. A more risky choice that would've been enthusiastically embraced by the progressive community would've been either Judge Wood or Judge Sears. because both have been judges for a long time they probably had controversial rulings which would've held up their nominations. Currently, Barack Obama does not have that kind of political capital. He needs to spend his political capital on financial reform and climate change legislation.

You have to choose your battles.

The Angry Independent said...

Good points Dr. Thompson,

But I don't know if her nomination is risk free. I think by raising questions on both the right and the left, Obama took a risk.

If he had to pick someone who has not been a judge, I would have preferred someone who was more of a solid Progressive (not necessarily a far left liberal...with radical opinions).... but someone like a Sonia Sotomayor or a John Paul Stevens as current examples.., or Jane Addams, or
Thurgood Marshall.... except in the form of a legal scholar with a solid background. I would rather see someone who isn't so shaky about Constitutionally protected civil liberties, especially when the Arizona case (or similar cases) may end up before the court.

Kagan, (although not a politician) seems too political for me.

But all in all (unless something else comes up)... I hope she is confirmed quickly. A drawn out confirmation battle wouldn't be helpful to Progressive interests at all, especially going into the political season. Although she was not my choice... it's not my choice that matters. It's Obama's choice.