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KQµårk 死神 On May - 10 - 2010

Here we go again with the hyperbole from both sides.  A left wing ideologue that is gonna kill babies and take away our guns but a Cheney loving neocon at the same time.  The part that always amazes me the most is how both the left and right like to boil down a whole career into a few labels.  Suffice to say the jury is still out on Kagan like with every nominee until they sit on the bench.

My biggest concern with her nomination is her someone inconsistent writings and responses about executive power.

In 2005 she rebuked Bush’s military tribunals (see entire story here).

As news broke Sunday evening of her impending nomination, word began spreading of a little-noticed letter Kagan had co-signed in 2005. The letter laid out major concerns and criticism with an amendment that Sen. Lindsey Graham (R-SC) had authored to the Defense Authorization bill that would have denied federal courts jurisdiction to consider habeas corpus petitions filed by prisoners at GITMO. The amendment also would have limited the judicial review of decisions of the Combatant Status Review Tribunals and Military Commissions.

Kagan, along with fellow law school deans T. Alexander Aleinikoff of Georgetown,
Harold Koh of Yale and Larry Kramer of Standford noted that: “When dictatorships have passed… our government has rightly challenged such acts as fundamentally lawless. The same standard should apply to our own government.”

It was a harsh rebuke of the one of the cornerstone philosophical tenets of the so-called “War on Terror.” And, in some respects, it diminishes the notion that Kagan values executive power over civil liberties.

In 2007 she did the same (read entire story here).

As dean of Harvard Law School, Kagan sharply and publicly criticized the excessive claims of executive authority put forth by Bush administration lawyers such as John Yoo. In an address at her school’s graduation ceremony in 2007, she forthrightly condemned “the expedient and unsupported legal opinions” used by Yoo and other lawyers to justify violations of federal laws regulating wiretapping and interrogation. Kagan minced no words in her critique of Bush administration lawyers who “failed to respect the law” or who manipulated, bent, or evaded the law “to seek short-term advantage.” She also held up as a model to the graduating students and their families and friends the actions of independent counsel Archibald Cox in standing up to President Nixon. And she praised other lawyers such as Jack Goldsmith, who insisted that President Bush cease the secret wiretapping program because they believed it unlawful.

On the other hand some statements she made enabling executive power during her confirmation hearings for solicitor general were troubling.

The people that actually know her like Elliot Spitzer all comment that she is remarkably intelligent and persuasive.  Spitzer goes so far to say she can persuade the likes of Kennedy to provide the 5th vote that is most important on a divided court on the most important issues like disavowing corporate personhood.

She’s obviously liberal on most social issues like civil rights and abortion. I like the fact that she defended against the Citizens United case. Even though she lost she had the gumption to call out Scalia as being “wrong”.  She is most famous kicking ROTC off campus as Dean of Harvard Law because of the millitay’s DADT policy.

Anti-choice groups are already bashing her (read whole story here).

Kagan is a supporter of taxpayer-funded abortion and has criticized Rust v. Sullivan, a case which upheld federal regulation that prohibited federal Title X funds from being used for abortion.

Dr. Charmaine Yoest of Americans United for Life said that Kagan “has strong ties to abortion-advocacy organizations and expressed admiration for activist judges who have worked to advance social policy rather than to impartially interpret the law.”

Kagan is also well known for supporting “LGBT rights” by opposing the presence of military recruiters on Harvard law school’s campus.  She judged that the military’s “Don’t Ask, Don’t Tell” (DADT) policy regarding individuals with same-sex attraction to violate Harvard rules regarding discriminatory organizations.

She called the DADT policy “profoundly wrong” and a “moral outrage” of the “first order,” according to NPR.

My personal feeling is since Thurgood Marshall is her role model that she will be a fine addition to the court.   Like Stevens and Souter before him who were both considered too conservative at the time if a justice is fair minded, appreciates legal precedent and not an ideologue the Constitution is a liberal enough document on it’s own merits for liberal interpretations of the law.  I dare say when her term ends people will be complaining her replacement is not liberal enough to fill her shoes.

Written by KQµårk 死神

My PlanetPOV contact is [email protected] Proud Dem whose favorite hobby is cat herding. The GOP is not a political party, it's a personality disorder. Cancer, Heart Failure and Bush Survivor.

30 Responses so far.

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  1. Chernynkaya says:

    Great post, KQ. The only story I have been aware of is the Kagan nomination, and I’ve been trying to catch up. Here’s some stories I just watched on Maddow about her, and I am greatly encouraged.

    A case for Kagan



  2. javaz says:

    I dislike her for shielding the Saudi family from 9/11 lawsuits.

    Honestly, I will not follow it this time, as I am tired of the corporate bullshit.

    As much as I love Obama, he’s still one of them -- a corporate shill.

    Are you happy with the health care reform?

    Of course not, but we lie to ourselves in believing Obama and thinking we needed some reform to correct it down the line.

    Wake up.

    Obama, as a candidate was almost pure, but when his biggest donors were Goldman and Sachs?

    Wake the F up.

    And during HCR, he cut a deal with the devil when it comes to BIG PHARMA?

    The same side of a coin, and as my mother always said, they are all crooks.

    And, this president, really does try to squelch the press, the media, and the media is corporate owned -- I get that -- but do not think Obama is better than Bush.

    Obama is increasing the wars and we voted for him but he is no different.

    He’s Bush part deux.

    I love Obama, and will vote for him again, but I am not fooled.

    He’s corrupt. too.

    • KQ says:

      javaz after your brief on topic statement if you just want to vent about Obama that’s your prerogative. I would just ask you to write a new post about it or put it on OT. Because I really don’t appreciate the OT diatribe on my post when you have plenty of other ways to express yourself that I and other are not preventing you from doing.

  3. PatsyT says:

    The conservatives need a guarantee with their picks because you can pull apart their arguments.
    Do the progressives really need a guarantee?
    I think not.
    Progressives have the better argument.
    I like Kagan. She is a thinker and that tells me she will lean left because when you are open to serious thought you wind up on the left. As with Stevens, she is open to reason.

    • KQ says:

      Excellent point Patsy. Conservatives really do have to use pretzel logic to get around the liberal nature of the Constitution. Every terrible decision the court ever made in the past shows this pattern.

      I’ve seen a few liberals say they really thought Roberts was more of a moderate. Russ Feingold even voted for him. I was not fooled and I’m glad Obama was not fooled and that’s one reason I voted for him.

      • PatsyT says:

        KQ, pretzel logic is the perfect description.
        Seriously, citizens united ?
        They got there doing crazy yoga and eating twisted pretzels.
        Progressives should have some faith in the strength of their positions and avoid the whine fest. I wish they could see that but maybe the noise coming from the left gives some comfort and cover to the RW and just might lull them into thinking Kagen is closer to their camp.

        What ever happened to honoring the Actual Law?
        Isn’t that what everyone should want?

        • KQ says:

          You have to remember purist liberals like Glenn Greenwald, Johnathan Turley and even the ACLU were for the Citizens United decision. That’s why I would much rather have a liberal who is more of a pragmatist on the bench than a purist liberal in some ways.

    • KQ says:

      For the record being head of the executive branch has almost the opposite effect. It’s been decades since a Dem or Repub has moved to the left and none have turned left on national security, quite the opposite, including FDR, Truman or LBJ that were left on domestic policy compared to today’s standards. Ironically the only president that did not really change much since FDR was Eisenhower probably because his Commander-in-Chief bona fides were impeccable. The last president that even tried to move to the left on national security was Carter and he was profoundly rebuked by the American people even if it was unjustifiable. The bottom line is the job of Commander-in-Chief always trumps any other parts of their job. No American but a president past or present has any idea what it’s like to have the safety of over 300,000,000 people on their minds every single night. We have to face the fact that the checks and balances were put in place for a reason to fight these innate tendencies depending on what your position is in government.

    • KQ says:

      You got that right. People need to understand that being on the SCOTUS is the most independent job in the land. It’s not like solicitor general were you are defending the executive and legislative branches. It’s truly a liberating experience if you will. I think that’s why people considered conservative who are not ideologues always turn left on the court. They protect the Constitution which is as liberal a document as you get. So if you are just fair minded on the court you would vote with the liberal wing.

      We should really really be thankful we have the Constitution because if we did not with the past conservatives in power the court could easily have at least 6 staunch conservatives on it.

  4. escribacat says:

    KQ--I ended up in ether when I clicked this link:

    In 2007 she did the same (read entire story here).

  5. KQ says:

    It looks like Bloomberg hates her stance on corporate power.

    “Obama 10th Justice Kagan Subverts Supreme Court Business Tilt”

    Subvert away I say.

    • whatsthatsound says:

      Exactly! Meanwhile, Obamanots are complaining loudly that she is a corporate tool.
      Maybe it’s all the superhero movies, and so few nuanced characters in today’s biggest movies. It seems that a very large number of Americans on either side have come to see the glass half empty and constantly being poisoned by the other side.

      • KQ says:

        Her background screams nothing but NY liberal to me. Here’s another good article on her.

        “Where I grew up — on Manhattan’s Upper West Side — nobody ever admitted to voting for Republicans,” Ms. Kagan wrote, in a kind of Democrat’s lament. She described the Manhattan of her childhood, where those who won office were “real Democrats — not the closet Republicans that one sees so often these days but men and women committed to liberal principles and motivated by the ideal of an affirmative and compassionate government.”


        Sounds like something one of us would say huh. It’s very interesting to me that everyone that actually knows her has no problems with her liberal qualifications.

        Anyway when has a Dem president let us down on the SCOTUS anyway really? I think JFK was the last Dem president that got burned by a pick that turned right.

        Contrary to popular belief Republicans don’t always get what they want on the SCOTUS. Sure Bush did with Alito and Roberts but Souter and Stevens turned pretty hard left even though they were nominated by Republicans. Even O’Conner and Kennedy were and are more moderate than Republicans wanted. All this hyperbole about Kagan moving the court right is utterly ridiculous. Once she’s independent like almost all Dems appointed to the court her liberal instincts will take over like they always do with Democrat and some Repub appointments alike.

    • Emerald1943 says:

      HI K! Nice to see you! Thanks for your over-view on Ms. Kagan. There has been considerable interest in her ability to be a “consensus maker” in discussions today. I would premise that Jesus Christ could not sway Roberts, Scalia and Thomas. Thinking that she can convince them to change their votes because they like her and admire her abilities is an exercise in futility. We know where they stand…clearly for the corporate interests in this country, not for us little guys.

      The sooner we get a couple more true progressives on the bench, the better off we’ll all be. As for Ms. Kagan, this remains to be seen whether she can fill the bill. I will be watching the confirmation hearings closely.

      As I said…good to see you, my friend! :-)

  6. Khirad says:

    I don’t need to tell you what it was like ‘over there’ KQ. You seem to have guessed quite accurately.

    “Bush III does it again” (I wish I had made this up)

    Fine, I say. Surely you would have rather had McCain replacing three Justices?

    Get a grip.

    That being said, I wish Obama had of had more spine and been less wary of midterms. The argument that a liberal who can make a moderate argument influencing Kennedy may be pure fancy (and insider baseball, as far as I’m concerned), but it is an interesting angle, whatever its merit.

    Anyone buy this reasoning? Why or why not?

    But yes, with all the Greenwalders distilling it down to one issue, they forgot all the other stances she’s taken (and the one he has).

    You may say she is flawed, on a very crucial Constitutional issue, but to be convinced she will be our Souter is premature, at least before hearings.

    The most convincing point of wariness may be the lack of a paper trail. Talk me down on this one.

    No WASPMs! I know it’s being played up, and it’s not a big deal; but a token Protestant would still be nice. Heck, I want the day when there will be a token non-believer.

    Why do all have to be from Ivy League schools though? That is also being played up on the shows, but this one does bother me a bit (though I’m not raising a stink about it, it just gives me minor pause). I’m not even saying they have to be from a state school. Sandra Day O’Connor was from Stanford, for example (though other Justices got their undergraduate there). And there is one Southerner (Thomas), Stevens was from Chicago, and there are currently two Californians (including Stevens). The rest are from New York and New Jersey. WTF? I know it may sound silly, but I do think where you come from can possibly give you a different perspective on certain issues. And that personal life experience can influence a decision positively as much as time in the Harvard Law library or time on the bench. But, these are qualities that cannot be measured…

    • Khirad says:

      By the way, I swear I didn’t see the geographical question before I ranted on it, and I just saw someone talking about it, so -- darn -- there goes me having an original thought on any of that.

    • KQ says:

      My problem with Greenwald’s case is he never presented her whole record on executive power. It amazes me how people who call themselves independent minded seem to gravitate to group think based on their favorite progressive pundit. Greenwald was way wrong about the Citizens United case so he could be wrong here as well.

      I really don’t know what more spine means in this case because I think this is the exact pick Obama wanted in the first place. It just makes sense to me that you don’t pick a fight for someone who is your second pick just to appeal to so called “progressives”.

      I’m wary of the 5th vote as well but to a person everyone who knows her says she’s very persuasive. Since her paper trail is light the people that are most important to listen to are people that know her.

      • Khirad says:

        Too true. What I mean with getting a spine (poor phraseology), should be applied more to any Democrat than just Obama, who did want her from the start, yes.

        I do take the Progressive line, a self-consciously pouty one, that they get to appoint Roberts, Scalito, etc; and we appoint moderates. It may be the more mature move, but gosh darnit and dag nabbit!

        That being said, the timing might be better for getting a true blue progressive with Ginsburg’s resignation. (I don’t mean to sound grim, but I’m not sure how long her health will keep)

        Maybe, despite all the naysayers and the clich

        • KQ says:

          You have to remember Roberts was considered moderate when confirmed and turned right. Heck even Russ Feingold voted for his confirmation. I think Kagan will do the same and turn left.

          • Khirad says:

            Yeah, too true on Roberts. I hope she’s a Roberts and not a Souter.

            I also think any of us saying one way or the other are getting ahead of ourselves before confirmations hearings.

            Then again, what are those but carefully crafted theater to say as little as possible?

            With upcoming cases, she won’t even be able to answer a few questions if she wants to, potentially.

            Oh, by the way. I totally forgot to mention the rampant sexist and homophobic comments about her appearance from the trolls (and I would suspect, they got it from Rushbo & Co) -- but -- who cares? As if I didn’t expect that.

            If rumors are true though (not that it should matter), it would give some credence to her turning left.

  7. LABC63 says:

    I quite agree with your assessment of Ms. Kagan. The tiresome and predictable drivel is coming from the left too -- Glenn Greenwald and his fanboy base are, as usual, whining about not getting a “true” progressive, whatever the hell that means on Salon.com these days.

    • escribacat says:

      I don’t know if I’m just in a bad mood or if those whiny all-or-nothings have evolved beyond whiny into unbearable childish tantrums.

      • Gretel1or2 says:

        e’cat I meant to reply to your post and I accidentally hit “report this comment.” So sorry and I hope I didn’t cause any problems!

        Anyway, I agree with you..between Cenk, Hamsher, Greenwald, etc., these constant tantrum episodes are getting tiresome…

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