Stripping away the core rights is not the way to achieve greater individual freedoms, IMO. We shall see.
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Obama Nominates Elena Kagan
Published 1, May 10, 2010 Bizarre , Constitutional Law , Society , Supreme Court 63 Comments
President Barack Obama said he wanted to honor the legacy of Associate Justice John Paul Stevens with his nominee. If so, he has chosen to honor it in the breach with a nominee who is likely to dismantle a significant part of Stevens’ legacy. As with Justice Sonia Sotomayor, President Obama has decided to nominate someone who is demonstrably more conservative than the person she is replacing –moving the Court to the right.
For many liberals and civil libertarians, the Kagan nomination is a terrible act of betrayal after the President campaigned so heavily on the issue of the Supreme Court during his campaign. He is now replacing a liberal icon with someone who has testified that she does not believe in core protections for accused individuals in the war on terror. During her confirmation hearing Kagan testified that she believed that anyone suspected of helping finance Al Qaeda should be stripped of protections and held under indefinite detention without a trial — agreeing with the Bush Administration.
Kagan’s writings (as little as there is) is highly problematic for liberals. Her writings on hate speech shows a willingness to compromise on free speech issues. This is a similiar view as expressed and criticized with Justice Sotomayor.
Under the so-called Ginsburg rule, it is unlikely that we are going to get much substantive discussion of such views. Ironically, Kagan helped create that rule as a staff on Ginsburg’s nomination. She once called confirmation hearings “vapid and hollow” — a tradition that she may now embrace. As in earlier hearings, the Democrats are unlikely to call any witnesses on these liberal concerns and the Republicans are likely to support those more conservative views. The result is likely to be entirely vapid as Kagan suggested. Unlike Republicans who oppose GOP nominees if they are insufficiently conservative, Democratic senators have shown that they do not fight for such ideological strength in a nominee.
Even in the early commentary, it is distressing how the discussion immediately focused on the politics rather than the substance of the nomination. As with Sotomayor, the media appears unable to have a discussion about the substantive views of a nominee.
There is no question that Kagan has proven leadership ability, particularly as a consensus builder. She was able to lead Harvard Law School and end the liberal/conservative fighting on that faculty. However, she is not considered an intellectual leader in the teaching academy. She has actually written comparatively little as an academic. She has written only a few significant law review articles and a collection of shorter pieces. She appears to have received tenure at the University of Chicago based on a single article — something that would not be permitted at most top schools. What writing is there is not welcome by civil libertarians, which shows a lack of commitment to the very “fundamental rights” that President Obama referenced this morning in his nominating speech. When it comes to free speech and detainee rights, she (like the President) adopts a more legally relativistic approach.
While conservatives are likely to attack her on her banning military recruiters from campus, she has largely avoided controversial writings or positions in her career.
For liberals, the problem is her “pragmatic” approach to civil liberties and support for Bush policies. Stevens was the fifth vote in opposing such policies and Kagan could well flip that result. Few could have imagined that voting for Obama would have resulted in moving the Court to the right, but that appears to be case with the selection of Kagan.
Obama’s record on civil liberties has long been attributed to a rather cold calculus that liberals have no where to go and that he should continue to play to the middle and right of the political spectrum. I am not so certain. There is no evidence that Obama actually believes in some of the principles that Stevens fought for, particularly in the area of terrorism. What is clear is that he has selected someone who will honor that legacy by dismantling a significant part of it. |
