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 substance....an 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.

Obama Caving to the Right On Miranda?

Once again I get the sense that Obama is caving to the Right on important, core issues. He did it on the issue of prosecuting terrorists in civilian Federal courts (something this nation has always done), and now Eric Holder has signaled that the Administration is willing to tinker with Miranda to give law enforcement more flexibility when dealing with terror suspects. There have been several other examples of this caving to Conservatives. I have honestly lost count.

Now the Congress is even flirting with the idea of stripping citizenship from people involved in terrorism, sometimes even before the disposition of a trial; and Speaker Pelosi thought that it might be a good idea. What in the World is going on? One question that immediately comes to mind for me is.... will this law be applied to the Right wing terrorists and their organizations? I'm talking about the McVeigh's, the Eric Rudolph's, the Jim Adkisson's, the Matthew Hale's, the James Von Brunn's, the Benjamin Nathaniel Smith's, and the James Kopp's. Certainly they are terrorists. Will they be banished from the Country? Will they be stripped of their rights as citizens?

Of course the Obama administration is flirting with the idea of changing Miranda (which he can't change in any significant way because it is protected by Supreme Court precedent), all to sort of pacify Conservatives who are complaining about the way he is handling terror suspects...some suggesting that Miranda should be banished altogether, even for terror suspects who are citizens.

The fact is, Miranda doesn't need any significant changes. The investigative process has been working fine, for the most part, under the current law. In fact, a public safety exemption already exists, when it comes to Miranda. The exemption has been around for 25 years and was established in the case of New York v. Quarles. In it, the Supreme Court concluded:

"concern for public safety must be paramount to adherence to the literal language of the prophylactic rules enunciated in Miranda."

Law enforcement authorities already have flexibility in how they use Miranda. Obama, a Constitutional law scholar, has to know this. I think (and hope) these moves are designed to try to blunt Republican talking points....which have been driving the debate on just about everything. I hope this is not a signal that Obama is willing to change basic civil liberties. As much as some may disagree, even terrorists have rights in this Country.

The irony in all of this is the fact that since 9/11, the Country has proclaimed that it would not allow terrorists to change the American way of life. But by tinkering with core principles of due process, miranda, etc, the Country is signaling that it is willing to change its most fundamental values. The terrorists win every time a nutty Republican tries to divide the Country on issues of fundamental rights.

They Are Who We Thought They Were

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Civil liberties critics of the last Administration were labeled paranoid in an attempt to marginalize them. Seems as if these folks weren't so paranoid after all.

Politics at the Pulpit

Should non-profits, specifically churches be allowed to keep their tax exempt status if they are political organizations? The question is relevant. There's a move afoot in the U.S. Congress to allow churches to preach politics and openly support politics and still keep their tax exempt status. Stanley Fish has an enlightened essay on the subject.

Analysis
This question is a doozy. Should we allow donations collected from the congregation be used for campaign commercials? But, how in the world can the government tell churches what they can or cannot with their money? Talk about a violation of the Establishment Clause of the First Amendment!

Yet, tax exempt status, according to the IRS, means you cannot engage in biased political activity. Actually, your organization can, but it won't keep its tax exempt status. But, you can see the problem here. Do we want Uncle Sam taxing churches, potentially performing audits into the financial affairs of our churches? I imagine most people will say that is one place the feds should stay away from.

My conclusion is to allow churches to preach all they want about politics, but not allow individual congregations to make official endorsements or do any official work on behalf of a party/candidate. Volunteering by church members is perfectly acceptable.

Has America Gone Too Far Down Slippery Slope?

Amy Goodman speaks with Naomi Wolf about the threat to civil liberties. In her new book "The End of America: Letter of Warning To A Young Patriot", Wolf talks about the "Fascist Blueprint" (10 steps leading to Fascism) and how America is well on its way to that end. Watch/Listen To Interview.
I happen to believe that some of her conclusions are a little exaggerated... However, she does bring up some interesting points.

I think the job of the next figure-head President will be to restore some sort of balance to the Country, in terms of civil liberties and the responsibility of the government to protect the citizenry. That is going to be one of the toughest jobs in the world. Where is this balance? I am not completely sure. However, I do believe that Americans will have to be willing to allow for some security measures, if they want to have a more secure Country.

The current situation seems out of balance...and will have to be righted. The Federal Courts have been trying to keep the government from going completely out of control, by limiting the other two branches in their phony War on Terror. But I think Congress will have to be much more responsive to the concerns of the people and will have to pass reasonable legislation. However, I won't hold my breath waiting for sensible and reasonable legislation from Congress...considering how they rushed to pass the Patriot Act without much scrutiny... doing all they could to satisfy the Executive branch instead of providing proper oversight.