ThinkProgress sets record straight on Kagan

[Green_Lantern]

"Glenn also notes an exchange between Senator Lindsay Graham and General Kagan (R-SC) regarding her views on indefinite detention. In that exchange, Kagan acknowledged that America may indefinitely detain a known terrorist, yet she was also very clear that such a detention could only occur after the detainee received “substantial due process” from an “independent judiciary” in a “transparent” process. In other words, Kagan embraces Justice Stevens’ view of detainee rights, as Stevens has consistently voted to resist Bush’s theory of detention-without-due-process.

A vaguely-related issue is Kagan’s view of the White House’s role within the Executive Branch. In her seminal article on “Presidential Administration,” General Kagan touts the Clinton White House’s supervision of executive branch agencies to ensure that those agencies achieved the “progressive goals” President Clinton was elected to achieve. There is a healthy debate in the progressive legal community regarding how aggressive a president should be in supervising the agencies, but it is also important to note what Kagan’s article is not about. Kagan’s article is about which part of the Executive Branch–the White House or the agencies–should take the lead in setting policy. It does not call for the kind of presidential seizure of power from the legislative and judicial branches that was so common under George W. Bush.

Kagan is also likely to be a much-needed voice against Chief Justice Roberts and Justice Alito’s crusade to immunize wealthy corporations from accountability under the law. As an adviser to President Bill Clinton, Kagan spearheaded bipartisan legislation to prevent tobacco companies from marketing their products to children — only to watch the court’s conservatives apply an implausible reading of the law and hold tobacco companies immune from such regulation. So Kagan knows what it is like to see years of effort to protect the American people’s heath and safety destroyed by a Supreme Court more concerned with protecting corporations than with upholding the law. Kagan spent much of her career crafting laws intended to protect ordinary Americans–so she understands the terrible consequences of ignoring the law to suit a narrow interest group’s agenda."


http://thinkprogress.org/2010/05/10/kagan-nomination/

[Richardo]

1. Thank you and rec

[jpak]

2. she's a witch!

she turned me into a newt!

:D

[Renew Deal]

6. lol

:rofl:

[berni_mccoy]

9. "I got better!" BURN HER!!!!!

:rofl:

[berni_mccoy]

3. Oh dear, ThinkProgress is about to be thrown under the bus. Goodness gracious

All the self-proclaimed "true liberals" are going to start attacking them now too!

:popcorn:

[Green_Lantern]

4. I've been on the fence about her but some here automatically

Just dismissed her faster than the right did.

[berni_mccoy]

5. To reach an immediate or pre-emptive stance against her would presume that Obama is as dumb as Bush

And that just isn't the case.

[Vinnie From Indy]

7. Hardly!

If one reads the ThinkProgress article, it should become quickly evident that the main defense of Kagan's indefinite detention paper trail has a link that does not lead to a COMPLETE transcription of the Lindsay Graham - Kagan exchange. One would think the ThinkProgress article would at least provide some basis for their argument by linking to the entire exchange. This could be a bad link or it could be an attempt to paper over what is a main concern of progressives about Kagan.

In addition, there is some debate as to whether Kagan has ever displayed the ability to convince and sway SC Justices to moderate positions in her half dozen appearances before the court. One of the main talking points being pushed by the Obama Admin. is that Kagan has the heft and intellect to actually sway justoces like Scalia and Roberts. Doty paints a much different picture. It would do all DU'ers well to read Turley's piece at:

http://jonathanturley.org/2010/05/10/obama-to-nominate-elena-kagan/

and this piece by James Doty about Kagan's appearances in front of the SC.

http://www.salon.com/news/feature/2010/04/15/kagan_as_solictor_general/index.html

[berni_mccoy]

8. Fail. Both criticisms have been debunked and dismissed. Keep trying though.

[Vinnie From Indy]

11. LOL!

Well one thing is for sure, any debunking done has not been by you on this thread nor have you linked to any debunking done by anyone. You simply offer that it has been done. Do you really think you are informing or swaying anyone with your silly and brief post? Is this your idea of debate?

[berni_mccoy]

14. The sad thing is, you keep posting failed arguments. Keep trying though. It's fun to watch

[sabrina 1]

17. The comenter above provided links to back up his arguments.

Reading the interaction between you and him, I see nothing from you to back up your contention that his arguments have 'been debunked'. Soemone on an internet board saying something has been debunked is not very persuasive. Do you have something to counter the information in his links?

[berni_mccoy]

18. Go to MediaMatters.Org. Also watch Rachel's segment from last night.

Both of those bullshit arguments are debunked.

I presume most DUers are well informed and go to these sources regularly.

[rudy23]

15. Why don't conservatives ever nominate moderate judges based on their ability to "swing" votes?

Why are we the only ones who seem to do that?

[Green_Lantern]

22. because they don't have to with the way the SC is made up

Roberts, Thomas, Alito, Scalia, Kennedy, Souter, Sotomayor, Ginsberg, Stevens

In that situation the liberal wing of the court needed to draw Kennedy's vote because if not Kennedy would vote with the conservative bloc or the Court decisions will be 4-4-1 and that means every challenge to laws will fail.

If we had 5 liberal leaning justices we wouldn't have to worry about it.

[Arkana]

10. Well, ThinkProgress has obviously been hijacked by DLC moles

who are out to misinform and dishearten "true progressives".

[Green_Lantern]

19. I hope you're being sarcastic...

nt

[Arkana]

20. Of course not.

I stand behind all my posts.











































...yes, I'm being sarcastic. ;)

[Green_Lantern]

21. you scared me there....

Because I've seen people on DU who say Amnesty Intl is a neocon organization.

[Rex]

12. Hmmm...how will this be spun?

[berni_mccoy]

16. Excellent question my dear Rex. How shall it be spun?!

A) "ThinkProgress is a bunch of paid shills!"
B) "Even ThinkProgress can be wrong."
C) (sound of head exploading because spin-fail)

Let's see...ummm. C)

[Rex]

24. You didn't bring the popcorn from the other thread.

:popcorn:

[and-justice-for-all]

13. I do not know enough about Kagen to make a deicison about her..

appointment.

[Orsino]

23. Indefinite detention without charges?

That's a cold, cold version of "due process."

[Green_Lantern]

25. she never said they can be held indefinitely without trial or charges...

Here is the hearing-----http://www.c-spanvideo.org/program/283954-1

She said only an independent judiciary can determine an enemy combatant can be held indefinitely, even though yes she does think combatants can be held indefinitely.

[berni_mccoy]

26. The disinformation campaign is having an impact apparently.

[Orsino]

27. She's eagerly agreeing to indefinite detention in this transcript...

...without any mention of charges.

[Vinnie From Indy]

28. It is troubling regardless of what the "amen" choir offers

I guess we will have to wait for confirmation hearings to see if she forthrightly addresses questions about detention if they are even asked. Cheers!

[Green_Lantern]

29. no the whole conversation is concerning detainees charged

With giving material support to Al Qaeda. That qualifies as charges.

[Orsino]

31. There's no mention of charges that I could find. n/t

[Green_Lantern]

32. well it's right there in the clip

At about 1:36:42 Graham said he asked AG Holder "If our intelligence agencies captured someone suspected of financing Al Qaeda would you consider that person part of the battlefield" and can be held indefinitely. Holder said yes and Kagan agreed.

The charge would be providing material support to terrorism...Are you saying Holder would support holding them without charge when he is the one who charges people to face a trial? Does he have multiple personalities?

[Orsino]

34. Sounds like Holder isn't worried about charges, either.

In fact, that quote makes him sound eager to wash his hands of the detainee. Relegating him to this infinitely-malleable "battlefield" where no charges need be brought is the very point I take issue with, and I'm aghast that Kagain is ready to sign on.

There's no need for all these gyrations about "determining status" when there is a suspect awaiting trial on a specific charge such as you mentioned.

[Green_Lantern]

36. honestly I think the quotes are out of context without

Looking at what Graham was asking. He was basically asking her if holding enemy combatants required more than some arbitrary decision by the executive.

He wasn't asking her to define the battlefield but in how to deal with captured Al Qaeda.

As far as a criminal trial....it would only work if the act occurred under US jurisdiction. If we captured an Al Qaeda member making a bomb in the Phillippines we couldn't criminally prosecute them due to no jurisdiction.

[Orsino]

40. "More than some arbitrary decision" is precisely my bone of contention.

Charge them or treat them as prisoners of war, I say. No more special status where people can disappear. No more battlefields of convenience. No more undeclared wars.

[Green_Lantern]

41. so you're complaining that the govt. isn't doing the exact...

Thing Kagan says she supports? I'm starting to think some people just are looking for something to bitch about.

Secondly the SC, appeals courts have upheld elements of the Military Commissions Ac saying illegal enemy combatants can be held indefinitely as long as they can challenge it in federal court.

So this criticism of Kagan is that "she follows the law too much."

[Orsino]

42. The criticism is that the law, and today's perverted interpretations of it, suck.

Kagan is going with the flow here.

[Green_Lantern]

45. no she really isn't....

The Bush administration said the Executive could unilaterally say someone was an enemy combatant and hold them indefinitely without judicial review and in this clip Kagan is agreeing that can't be done.

[Orsino]

49. That's not the flow.

The flow is the meme that indefinite detention without charges is okay--for terrorists. Kagan seems okay with that.

The flow is toward some restrictions and transparency, but away from detainees rights.

[Green_Lantern]

51. I don't think she's saying that detainees have no rights...

But do you agree she at least deserves a hearing to determine her position on this?

[Orsino]

53. She deserves the hearing that she probably won't get.

She deserves the reasoned scrutiny that today's MSM refuses even to attempt.

She deserves the vote on her merits that this Senate is morally incapable of providing.

I'm not sure we actually deserve all this, but we damned sure need a Supreme Court that doesn't easily set aside habeas corpus.

[Green_Lantern]

54. the SC didn't set aside habeas corpus...

Where'd you pull that from? Or are you saying you don't want a future SC to do that?

Even the conservative Roberts court upheld habeas corpus

Where do you get that she probably won't get a hearing?

[Orsino]

55. She'll get the same hearing Sotomayor got...

...meaning a lot of grandstanding and cheap attempts to catch her out on trivia, with media scrutiny focused mainly on ex-lovers and deliberate mis-readings of her work and out-of-context sound bites. You know--the US Senate.

And no, I do not want a Supreme court that will erode habeas corpus, as you have guessed.

[Green_Lantern]

56. the court isn't going to set aside habeas corpus if it hasn't done

It yet...unless another terrorist attack happens. Habeas is overrated though, it doesn't really matter. Any court has the discretion to just not hear the case.

[Orsino]

57. This court has already proven it will pervert the First Amendment beyond reason or excuse.

They'll be coming for Article One eventually, and so I don't want to replace Stevens with anyone less well-intentioned.

[Green_Lantern]

58. I think some elements of the left and right are a bit too hysterical..

About the Supreme Court when actually it's been the biggest defender of liberty, democracy, and American system from radical change on either extreme...mob rule or executive dictatorship.

[Orsino]

60. There are more than two extremes.

I'd like to move us toward that perfect world of little to no interference in government by corporations and their corrupt enablers.

[Green_Lantern]

61. that's not the purpose of the SC really but Congress...

The Constitution is meant to limit government power and the SC exists to interpret the law.

[Orsino]

62. Tilting that balance has become a purpose of the Supremes.

I want it tilted back another way.

[TomCADem]

30. As Dean, Kagan Opposed Legislation Stripping Detainees Of Right To Court Review

Once again, some folks are more interested in scoring points and distorting Elena Kagan's record, than having an honest conversation about whether or not she is more than qualified to be a Supreme Court justice.

http://www.prospect.org/csnc/blogs/tapped_archive?month=05&year=2010&base_name=kagan_more_progressive_on_exec

In a 2005 letter to Sen. Patrick Leahy, Kagan and three other deans of major American law schools, wrote to oppose legislation proposed by Sen. Lindsey Graham (R-SC) to strip the courts of the power to review the detention practices, treatment and adjudications of guilt and punishment for detainees at Guantanamo Bay, Cuba.

"To put this most pointedly," the letter said, "were the Graham amendment to become law, a person suspected of being a member of al-Qaeda could be arrested, transferred to Guantanamo, detained indefinitely ... subjected to inhumane treatment, tried before a military commission and sentenced to death without any express authorization from Congress and without review by any independent federal court. The American form of government was established precisely to prevent this kind of unreviewable exercise of power over the lives of individuals. "

"When dictatorships have passed" similar laws, said the deans, "our government has rightly challenged such acts as fundamentally lawless. The same standard should apply to our own government."

[NJmaverick]

33. K & R!

[mod mom]

35. They didn't address the Seigelman case which for me demonstrates lack of

independence of judicial temperament. Knowing that 95 former state attorneys general have called this case out and going along with not giving Seigelman access to re hear the case DESPITE THE CORRUPT GOP ESTABLISHMENT TACKING ON AN ADDITIONAL 20 YEARS makes me sick to my stomach. A blatant political prosecution that has been called out by a bipartisan group and yet Ms Kagan decides to willingly go along with the government stance, says a lot.

[Green_Lantern]

38. actually it shows her temperament...

For one thing why would Kagan, a Dem party insider, want to help the GOP? Secondly the US Court of Appeals upheld the charges and said there was nothing improper with the trial.

Kagan did the right thing...you seem to want her to put aside the law and make decisions based on whether it could benefit Republicans.

[mod mom]

43. so dozens upon dozen of bipartisan former state attorneys general are wrong?

Review of Governor’s Conviction Sought

By JOHN SCHWARTZ and CHARLIE SAVAGE
Published: April 21, 2009
Less than a month after the Justice Department asked a judge to drop the case against former Senator Ted Stevens of Alaska because of prosecutorial misconduct, 75 former state attorneys general from both parties have urged Attorney General Eric H. Holder Jr. to conduct a similar investigation of the prosecution of former Gov. Don Siegelman of Alabama, who was convicted nearly three years ago on bribery and corruption charges.


In a letter to Mr. Holder, the attorneys general said Mr. Siegelman’s defense lawyers had raised “gravely troublesome facts” about his prosecution that raise questions about the fairness and due process of the trial.

“We believe that if prosecutorial misconduct is found, as in the case of Senator Ted Stevens, then dismissal should follow in this case as well,” the group said in the letter, which was organized by Robert Abrams, a former attorney general of New York.

Lawyers for Mr. Siegelman, a Democrat, have long accused the Justice Department under President George W. Bush of conducting a politically motivated prosecution that they say was filled with irregularities, including a failure to turn over pertinent information to the defense team.

-snip
http://www.nytimes.com/2009/04/22/us/22justice.html

[Green_Lantern]

44. no..they weren't wrong..

They didn't say Siegelman was innocent, they were saying Holder should investigate charges of prosecutorial misconduct. He investigated determined there was none. What motive would he have to lie?

[mod mom]

46. you haven't followed the case and yet made up your mind.

:eyes:

[Green_Lantern]

48. whether or not I followed the case has nothing to do with it..

Appealing a conviction has nothing to do with proving innocence or guilt but whether there is prosecutorial misconduct etc.

[mod mom]

50. I believe this seasoned retired US District Judge along with the bipartisan former AGS who examined

the case (this level of expert outrage is unprecedented) have more knowledge than you:

One of the most experienced federal judges in recent Alabama history is denouncing the U.S. Justice Department prosecution of former Alabama Gov. Don Siegelman. Retired Chief U.S. District Judge U.W. Clemon of Birmingham calls for a probe of misconduct by federal prosecutors ─ including their alleged "judge-shopping," jury-pool "poisoning" and "unfounded" criminal charges in an effort to imprison Siegelman.

The Siegelman prosecution by the Bush Administration Justice Department is one of the most controversial U.S. criminal cases of the decade because of claims that Republican political appointees ─ sometimes using career prosecutors as public surrogates ─ unfairly targeted the Democratic defendant to prevent his re-election in 2006 as governor.

"The 2004 prosecution of Mr. Siegelman in the Northern District of Alabama was the most unfounded criminal case over which I presided in my entire judicial career," Clemon wrote U.S. Attorney General Eric H. Holder last week. "In my judgment, his prosecution was completely without legal merit; and it could not have been accomplished without the approval of the Department of Justice."

The remarkable letter by Clemon requests that that Holder investigate misconduct by federal prosecutors arising from Siegelman's 2004 trial on bribery-related charges. Clemon oversaw that trial until prosecutors dropped the case. Prosecutors then shifted their effort against Siegelman to a different Alabama federal district. Prosecutors obtained Chief U.S. District Judge Mark E. Fuller of Montgomery to preside over the former governor's trial. Fuller hated Siegelman because of his role in appointing an investigator for scandals arising from the judge's controlling interest in the military contractor Doss Aviation, according to on-the-record sources cited in my Huffington Post article published May 15.

-snip

http://www.huffingtonpost.com/andrew-kreig/siegelmans-first-trial-ju_b_206546.html

[Green_Lantern]

52. ad hom attack on me...

They may know about the case than me but so does the Appeals court and DOJ who both ruled they found no prosecutorial misconduct and no reason to overturn the verdict.

You must want the Solicitor General to ignore the Attorney General and a US Court of Appeals. That is not judicial temperament.

[joeybee12]

37. The problem I have is that she's a career politician, wheeling and dealing...

...the constitution was not mean to be interpreted to win approval.

[Green_Lantern]

39. career politician? let's get our facts straight..

Her legal career started in '87


and here is her career working in politics:

from '95-'99 she worked as Clinton's admin. as Assn WH Counsel

From 2009-2010 she was Obama's SG

5 years isn't a career politician

[redqueen]

47. Facts?

We don't need no stinkin facts!

[NJmaverick]

59. Ahh she was a career professor and Dean not a politician