Foes may target Kagan's stance on military recruitment at Harvard

[mehdi kiril]

Source: Washington Post

Four months after becoming dean of Harvard Law School, Elena Kagan sent an e-mail to students and faculty lamenting that military recruiters had arrived on campus, once again, in violation of the school's anti-discrimination policy. But under government rules, she wrote, the entire university would jeopardize its federal aid unless the law school helped the recruiters, despite the armed forces' ban on openly gay members.

"This action causes me deep distress," Kagan wrote that morning in October 2003. "I abhor the military's discriminatory recruitment policy." It is, she said, "a profound wrong -- a moral injustice of the first order."

Her stance put Kagan squarely in sync with professors at Harvard and other law schools -- and wholly out of sync with the Supreme Court, which later ruled unanimously that the schools were wrong. Four years after that ruling, Kagan, now the U.S. solicitor general, is a leading candidate to succeed retiring Justice John Paul Stevens on the nation's highest court. Conservatives have signaled that if President Obama nominates her, her stance on this issue dangles -- like perhaps no other in her career -- as ripe fruit opponents would grab to thwart her confirmation.

"For someone who has been so guarded on so many issues, she used strikingly extreme rhetoric. 'Moral injustice of the first order' would seem fit for something like the Holocaust," said Ed Whelan, president of the conservative Ethics and Public Policy Center. "This is one issue that provides some jurisprudential clues as to how much her reading of the law will be biased by her policy views. If she is the nominee, that is an angle that I would press."

Read more: http://www.washingtonpost.com/wp-dyn/content/article/2010/04/17/AR2010041701296_pf.html

[saigon68]

1. Ed Whelan is a Fucking Jack-Ass

[IndianaGreen]

2. Of greater concern to this leftist is Kagan's support for Bush's unitary Presidency

Anyone that supports the concept of a unitary Presidency is a dangerous rightwinger. It was precisely that concept, advanced by the likes of Dick Cheney and John Yoo, that brought us to the brink of tyranny. If we are to restore the Constitution and the federal republic, we must do a one-eighty from all the policies of the Bush/Cheney regime. Having a Democratic Administration embrace, and even expand on those policies, does not make our current situation more palatable.

Published on Tuesday, April 13, 2010 by Salon.com

The Case Against Elena Kagan

by Glenn Greenwald

It is far from clear who Obama will chose to replace John Paul Stevens on the Supreme Court, but Elena Kagan, his current Solicitor General and former Dean of Harvard Law School, is on every list of the most likely replacements. Tom Goldstein of SCOTUSblog has declared her "the prohibitive front-runner" and predicts: "On October 4, 2010, Elena Kagan Will Ask Her First Question As A Supreme Court Justice." The New Yorker's Jeffrey Toobin made the same prediction.

The prospect that Stevens will be replaced by Elena Kagan has led to the growing perception that Barack Obama will actually take a Supreme Court dominated by Justices Scalia (Reagan), Thomas (Bush 41), Roberts (Bush 43), Alito (Bush 43) and Kennedy (Reagan) and move it further to the Right. Joe Lieberman went on Fox News this weekend to celebrate the prospect that "President Obama may nominate someone in fact who makes the Court slightly less liberal," while The Washington Post's Ruth Marcus predicted: "The court that convenes on the first Monday in October is apt to be more conservative than the one we have now." Last Friday, I made the same argument: that replacing Stevens with Kagan risks moving the Court to the Right, perhaps substantially to the Right (by "the Right," I mean: closer to the Bush/Cheney vision of Government and the Thomas/Scalia approach to executive power and law).

<snip>

Beyond the disturbing risks posed by Kagan's strange silence on most key legal questions, there are serious red flags raised by what little there is to examine in her record. I've written twice before about that record -- here (last paragraph) and here -- and won't repeat those points. Among the most disturbing aspects is her testimony during her Solicitor General confirmation hearing, where she agreed wholeheartedly with Lindsey Graham about the rightness of the core Bush/Cheney Terrorism template: namely, that the entire world is a "battlefield," that "war" is the proper legal framework for analyzing all matters relating to Terrorism, and the Government can therefore indefinitely detain anyone captured on that "battlefield" (i.e., anywhere in the world without geographical limits) who is accused (but not proven) to be an "enemy combatant."

Those views, along with her steadfast work as Solicitor General defending the Bush/Cheney approach to executive power, have caused even the farthest Right elements -- from Bill Kristol to former Bush OLC lawyer Ed Whelan -- to praise her rather lavishly. Contrast all of that with Justice Stevens' unbroken record of opposing Bush's sweeping claims of executive power every chance he got, at times even more vigorously than the rest of the Court's "liberal wing," and the risks of a Kagan nomination are self-evident.

The only other real glimpse into Kagan's judicial philosophy and views of executive power came in a June, 2001 Harvard Law Review article (.pdf), in which she defended Bill Clinton's then-unprecedented attempt to control administrative agencies by expanding a variety of tools of presidential power that were originally created by the Reagan administration (some of which Kagan helped build while working in the Clinton White House), all as a means of overcoming a GOP-controlled Congress. This view that it is the President rather than Congress with primary control over administrative agencies became known, before it was distorted by the Bush era, as the theory of the "unitary executive." I don't want to over-simplify this issue or draw too much importance from it; what Kagan was defending back then was many universes away from what Bush/Cheney ended up doing, and her defense of Clinton's theories of administrative power was nuanced, complex and explicitly cognizant of the Constitutional questions they might raise.

http://www.commondreams.org/view/2010/04/13-0

[tpsbmam]

3. +1000 nt

[liberation]

8. Add a couple of orders of magnitude to that plus nt

[Bitwit1234]

4. Obama would be coocoo to appoint anyone as conservative

as she is. He wants to make the court more in tune with America she shouldn't even be considered. If he appoints her to appease republicans and get her passed he sure as hell should go down.

[msongs]

5. lol obama the conservative democrat would not do this. yeah right nt

[Jim Sagle]

6. Maybe he's as conservative as she is. In that case he wouldn't be coocoo at all.

[Old Troop]

11. I always thought coocoo was spelled Koo Koo

[mr_liberal]

7. Im more concerned about her position on the

First Amendment. She thinks theres ways to censor that are constitutional if its not about content, and she thinks obscenity laws should be used to censor things that are politically incorrect like pron.

Unless he has changed her views she is not a very good nominee. And yet she's probably better than Obama's first pick, Sotomayor, who had a very sketchy record on all issues and who does not seem like she has the ability to have much influence on the other justices.

Obama has been a big dissapointment so far with the supreme court.

[Suji to Seoul]

9. Wow. . .one appointment and within a year, he's a big disappointment?

Asking for too much too soon? Sotomayor's been on the court less than two years.

[JTFrog]

10. .