High Court Nominee Already Drawing Fire from Left and Right

• by William Fisher (new york)
• Monday, May 10, 2010
• Inter Press Service

Kagan, currently the first woman to serve as U.S. solicitor general, would join two other women on the high court. She would also be the third Jewish justice, after Ruth Bader Ginsberg and Stephen Breyer.

Since long before President Barack Obama nominated her to the highest court in the country, one school of observers has been saying that Kagan has the intellectual firepower to persuade Justice Anthony Kennedy to join the 'liberal' wing of the court on more occasions, while another group believes that, based on her record, her appointment is more likely to move the court to the right.

At one end of this spectrum of opinion stand the views of Prof. Frances Boyle, the left-of-centre firebrand legal scholar from the University of Illinois Law School.

Boyle told IPS, 'As dean of the Harvard Law School, Kagan hired [George W.] Bush's outgoing director of the Office of Legal Counsel, Jack Goldsmith, as a law professor. Goldsmith is regarded by myself and many others in the field as a war criminal.'

'He wrote some of the memos that attempted to make violations of the Geneva Conventions appear legal. Kagan actually bragged about how proud she was to have hired Goldsmith after one of his criminal Department of Justice memoranda was written up in the Washington Post,' he noted.

In a recent article entitled, 'Kagan Will Move Supreme Court to the Right', Marjorie Cohn, immediate past president of the progressive National Lawyers Guild and a professor at Thomas Jefferson School of Law, writes: 'During her confirmation hearing for solicitor general, Kagan agreed with Senator Lindsey Graham that the president can hold suspected terrorists indefinitely during wartime, and the entire world is a battlefield.'

'While Bush was shredding the Constitution with his unprecedented assertions of executive power, law professors throughout the country voiced strong objections. Kagan remained silent,' she noted.

Scott Horton, a prominent constitutional lawyer, told IPS, 'She seems to embrace and support an executive who wields tremendous, and growing power.'

'On national security matters,' Horton contends, 'she has staked out positions that are clearly far to the right of [outgoing justice John Paul] Stevens. I think she could wind up surprising many observers after she's on the court, but I incline to view her as a centrist Democrat, probably not far away from Sonia Sotomayor, and certainly to the right of Stevens, so her appointment moves the court to the right generally.'

Kagan's views on presidential power also concern the Centre for Constitutional Rights, (CCR), a legal advocacy group that has defended dozens of Guantanamo Bay prisoners.

In a statement, CCR executive durector Vince Warren said, 'At the Center for Constitutional Rights, we have fought at the forefront to hold back presidential overreach and the dangerous growth of executive power, particularly as it concerns torture, detention, surveillance and racial profiling, areas where the government has flouted the law most blatantly over the last decade.'

'I am sad to say that Solicitor General Elena Kagan's record indicates a troubling support for expanding presidential powers, something we must be vigilant about at this time,' Warren said.

Yet another perspective comes from Morris Davis, former chief prosecutor for the Guantanamo Bay military commissions, who noted that Harvard, Yale, and Columbia 'are three of the 199 law schools accredited by the American Bar Association - about 1.5 percent of the total - and produce about 3 percent of law school graduates annually, yet graduates of the three most elite Ivy League law schools will fill 100 percent of the nine seats on the U.S. Supreme Court.'

Republican critics, gearing up for a possible confirmation fight this summer, are already preparing the ground by noting that confirming a solicitor general is a lot different than confirming a Supreme Court justice - a lifetime appointment.

The opposition will likely raise a number of other issues in Kagan's past. For example, in 2003, while serving as dean of the Harvard Law School, Kagan spoke out against the Defence Department's 'don't ask, don't tell' policy. She wrote, 'I abhor the military's discriminatory recruitment policy,' a policy she called 'a profound wrong - a moral injustice of the first order'.

The limits on presidential power are certain to be a major area of debate during her confirmation hearings.

Brian J. Foley, visiting associate professor of Law at Boston University School of Law, told IPS, 'A main inquiry is what are the nominee's views of the proper role of the executive in the so-called war on terror. Does the nominee support the power grab of the last administration - a power grab that, unfortunately but perhaps not surprisingly, the current administration seems to favour?'

'The problem is that many legislators seem to have drunk the kool-aid that the way to deal with the threat of terrorism - a threat that is likely overrated - is to wage war and crack down on our civil liberties. So, legislators are unlikely to probe deeply about such matters at confirmation hearings,' he said.

Yet another sceptical view is voiced by Tina Foster, head of the Alliance for Justice, which is providing legal assistance for prisoners at Bagram Air Base in Afghanistan.

She told IPS, 'Ms. Kagan is listed as the primary drafter of the brief in opposition to our Bagram cases. Since she drafted the legal argument for Obama's defence of indefinite detention of all future war on terror detainees, it's hard to imagine her disagreeing with her own argument if appointed to the Supreme Court.'

Kagan's confirmation hearings before the Senate Judiciary Committee will likely take place this summer, according to Committee chairman Sen. Patrick Leahy, a Vermont Democrat.

© Inter Press Service (2010) — All Rights ReservedOriginal source: Inter Press Service

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