The Reasoned Review

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Justice Stevens

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Still traveling, but I want to briefly touch upon Justice John Paul Steven’s recent retirement from the Supreme Court, which is an extremely crucial event in US jurisprudence and will likely have far-reaching ramifications on issues as diverse as campaign finance, torture, kidnapping, indefinite detention, abortion, and nearly every other issue on which the Supreme Court has given a narrow decision in the last fifty years.

Unlike the Sotomayor-for-Souter swap that occurred last year, Stevens retirement presents the first real opportunity for President Obama to re-make the Supreme Court. Stevens, who will turn 90 this year, has led the so-called “left wing” of the Supreme Court for nearly forty years. The New Yorker ran an excellent piece a couple weeks ago detailing Stevens’s long and storied career which I highly recommend reading to get an idea of what a significant force he has exerted on American jurisprudence. The last justice who still remembers World War II, Stevens has been a consistent champion for individual rights, limiting Executive Branch power, and upholding anti-trust legislation. The past decade saw numerous challenges to President Bush’s theories of unlimited executive power come before the Supreme Court, and many of the most dangerous powers assumed by Presidents Bush and Obama (suspension of habeas corpus, interrogation by torture, warrantless wiretappaing, etc) were struck down in narrow 5-4 majorities.

It is difficult to overstate Stevens’s role in providing at least a nominal limit to the President’s power. He not only voted with the majority in those decisions, he was the majority’s intellectual leader. Were Stevens not on the bench when the Supreme Court was deciding, say, Hamdan v. Rumsfeld, we would not have even a theoretical limit to what the President can and cannot do.

All this makes President Obama’s selection for Stevens’s replacement crucial. The establishment press is now reporting that Elena Kagan has emerged as the “frontrunner” for Stevens’s seat. Glenn Greenwald has a good rundown of her major characteristics, and she appears a “centrist” candidate, equally likely to please “both sides” of the aisle, and is sure to undergo a swift and painless confirmation.

To appease the “left”, Ms. Kagan takes solidly pro-abortion and pro-gay positions. To satisfy the national security fanatics, Ms. Kagan supports an expansive view of executive power, including the power to detain “terror suspects” indefinitely. According to the LA Times (via the Washington Independent), Ms. Kagan has explicitly stated that the President can hold ‘enemy combatants’ without trial:

Harvard Law Dean Elena Kagan, President Obama’s choice to represent his administration before the Supreme Court, told a key Republican senator Tuesday that she believed the government could hold suspected terrorists without trial as war prisoners.She echoed comments by Atty. Gen. Eric H. Holder Jr. during his confirmation hearing last month. Both agreed that the United States was at war with Al Qaeda and suggested the law of war allows the government to capture and hold alleged terrorists without charges.

This is not a fair trade. It is important to realize that Ms. Kagan’s colorful opinions on Executive power fly directly in the face of the most significant Supreme Court decisions of the past decade: Hamdan v. Rumsfeld, Hamdi v. Rumsfeld, and Boumediene v. Bush, all of which upheld the rights of ‘enemy combatants’ to be treated in accordance with the Geneva Convention (i.e. not tortured), be tried in a regularly constituted court, and challenge their detention in accordance with the Sixth Amendment. Given Ms. Kagan’s stated opinions, one can only conclude that her nomination to the Supreme Court would signify a palpable shift to the “right” for the judicial branch – that is, a shift away from the idea of “separation of powers” and toward a theory of an all-powerful executive.

Congress has long since lost almost all of its independence to massive corporations and executive bullying (remember the Iraq war?), but the Judiciary has still retained at least a modicum of  separation from the executive-legislative conglomerate. Ms. Kagan’s views regarding executive power during “war time” (and let’s not forget that this ‘war on terror’ is supposed to last 50 years) throw our independent judiciary into considerable danger. She should not be confirmed.

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