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Elena Kagan – The Executive’s Dream

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The smartest points on the Elena Kagan Supreme Court nomination, were, as usual, made by Glenn Greenwald, who noted that not only does Ms. Kagan have no documented views on any important subjects, she has often expressed herself stolidly in favor of a greatly expanded executive branch. Ms. Kagan believes that habeas corpus and the right to a speedy civilian trial should be revoked to people accused of Terrorism, as well as their right not to be interrogated by torture, their right to see the evidence against them, and their right to see a lawyer. She has expressed this, at least, in various letters which can be found with a Google search.

It’s difficult to express my sadness at this nomination. We had prayed that Dianne Wood  – a far stronger candidate with a proven, documented record against unlimited executive power – would end up the nominee.  Some of our most cherished privileges, such as the right not to be interrogated by torture, hang by the thread of a single Supreme Court justice. Hamdan v. Rumsfeld, Boumediene v. Bush, Rasul v. Bush and several other crucial cases were decided by a narrow 5-4 majority. The above cases ruled nearly every aspect of the Bush-Obama secret detention program unconstitutional, and though they were largely ignored, their value is inestimable.

The New York Times, our bellwether to establishment opinion, let loose a glaring (Freudian?) slip in its treatment of the Kagan nomination. Halfway through the article, they say:

As he presses an ambitious agenda expanding the reach of government, Mr. Obama has come to worry that a conservative Supreme Court could become an obstacle down the road, aides said. It is conceivable that the Roberts court could eventually hear challenges to aspects of Mr. Obama’s health care program or to other policies like restrictions on carbon emissions and counterterrorism practices.

Which is baffling for a variety of reasons. First, the “ambitious agenda [to expand] the reach of government” would likely include, in NYT parlance, the health care reform bill, the financial regulation bill, the repeal of Don’t Ask Don’t Tell, or other such Obama initiatives. The “ambitious agenda” surely does not include an unlimited expansion of executive power to torture, detain, and assassinate anyone around the globe, something with which Ms. Kagan (a so-called “liberal”) wholeheartedly agrees. To the contrary, Mr. Obama has real reason to fear a liberal Supreme Court, which would continue to strike down his unconstitutional uses of executive power – hence his selection of a cheerleader for indefinite detention and torture. Were Ms. Kagan, like her predecessor Justice Stevens, to have spoken out vociferously against our present detention practices, I have no doubt Mr. Obama would have passed her over for the nomination, as he did to Dianne Wood.

The confirmation hearings are sure to unfold as usual – that is, with as little substantive information as possible. When Ms. Kagan is asked about her views on previous decisions, she will of course say: “I will not interfere with precedent.” When she is asked about any future decisions she might make, she will naturally say “I cannot comment until the case comes before me.” So we end up learning nothing about her judicial views, except for the few stray comments that suggest she supports a “robust” interpretation of executive power. Change we can believe in!

Written by pavanvan

May 11, 2010 at 9:11 pm