[WS:] Troubling? What else did she expect from a future functionary of one of the most reactionary and pro-capitalist institutions in this country?
Re: "she nevertheless buys into the Republican theory
that the Executive Branch should be enhanced."
[WS:] Interesting. So what institutions should we rely on - the reactionary SCOTUS or the venal Congress? Gimme a break. Nothing even remotely progressive came out of that fucking chatterbox on the Potomac. Whatever little progressive reforms we have came form the Executive Branch. If it were solely to the Congress, Jim Crow would still be the law of the land.
I am really surprised that intelligent and knowledgeable people do not see the reactionary role of the judiciary and the partisan politics in the US, and mindlessly repeat the "balance of power" trope.
Wojtek
On Fri, May 14, 2010 at 10:36 PM, Michael Pollak <mpollak at panix.com> wrote:
>
> http://www.commondreams.org/view/2010/05/14
>
> Friday, May 14, 2010
> CommonDreams.org
>
> Kagan's Troubling Record
> by Marjorie Cohn
>
> After President Obama nominated Elena Kagan for the Supreme Court,
> he made a statement that implied she would follow in the footsteps
> of Justice Thurgood Marshall, the civil rights giant and first black
> Supreme Court justice. Kagan served as a law clerk for Marshall
> shortly after she graduated from Harvard Law School. Specifically,
> Obama said that Marshall's "understanding of law, not as an
> intellectual exercise or words on a page, but as it affects the
> lives of ordinary people, has animated every step of Elena's
> career." Unfortunately, history does not support Obama's optimism
> that Kagan is a disciple of Marshall.
>
> Kagan demonstrated while working as his law clerk that she disagreed
> with Marshall's jurisprudence. In 1988, the Supreme Court decided
> Kadrmas v. Dickinson Public Schools, a case about whether a school
> district could make a poor family pay for busing their child to the
> closest school, which was 16 miles away. The 5-justice majority held
> that the busing fee did not violate the Fourteenth Amendment's Equal
> Protection Clause. They rejected the proposition that education is a
> fundamental right which would subject the statute on which the
> school district relied to `strict scrutiny.' The Court also declined
> to review the statute with `heightened scrutiny' even though it had
> different effects on the wealthy and the poor. Instead, the majority
> found a `rational basis' for the statute, that is, allocating
> limited governmental resources.
>
> Marshall asked clerk Kagan to craft the first draft of a strong
> dissent in that case. But Kagan had a difficult time complying with
> Marshall's wishes and he returned several drafts to her for, in
> Kagan's words, "failing to express in a properly pungent tone - his
> understanding of the case." Ultimately, Marshall's dissent said,
> "The intent of our Fourteenth Amendment was to abolish caste
> legislation." He relied on Plyler v. Doe, in which the Court had
> upheld the right of the children of undocumented immigrants to
> receive free public education in the State of Texas. "As I have
> stated on prior occasions," Marshall wrote, "proper analysis of
> equal protection claims depends less on choosing the formal label
> under which the claim should be reviewed than upon identifying and
> carefully analyzing the real interests at stake." Kagan later
> complained that Marshall "allowed his personal experiences, and the
> knowledge of suffering and deprivation gained from those experiences
> to guide him."
>
> Kagan evidently rejects these humanistic factors that guided
> Marshall's decision making and would follow a more traditional
> approach. This is a matter of concern for progressives, who worry
> about how the Supreme Court will deal with issues like a woman's
> right to choose, same sex marriage, "don't ask, don't tell," and the
> right of corporations to donate money to political campaigns without
> restraint. While Kagan has remained silent on many controversial
> issues, she has announced her belief that the Constitution provides
> no right to same-sex marriage. If the issue of marriage equality
> comes before the Court, Justice Kagan would almost certainly rule
> that denying same sex couples the right to marry does not violate
> equal protection.
>
> There are other indications that should give progressives pause as
> well. During her solicitor general confirmation hearing, Kagan said,
> "The Constitution generally imposes limitations on government rather
> than establishes affirmative rights and thus has what might be
> thought of as a libertarian slant. I fully accept this traditional
> understanding..." But the Constitution is full of affirmative rights
> - the right to a jury trial, the right to counsel, the right to
> assemble and petition the government, etc. Does Kagan not understand
> that decisions made by the Supreme Court give life and meaning to
> these fundamental rights? Is she willing to interpret those
> provisions in a way that will preserve individual liberties?
>
> While Kagan generally thinks the Constitution serves to limit
> governmental power, she nevertheless buys into the Republican theory
> that the Executive Branch should be enhanced. In one of her few law
> review articles, Kagan advocated expansive executive power
> consistent with a formulation from the Reagan administration. This
> is reminiscent of the `unitary executive' theory that George W. Bush
> used to justify grabbing unbridled executive power in his `war on
> terror.'
>
> As solicitor general, Kagan asserted in a brief that the `state
> secrets privilege' is grounded in the Constitution. The Obama White
> House, like the Bush administration, is asserting this privilege to
> prevent people who the CIA sent to other countries to be tortured
> and people challenging Bush's secret spying program from litigating
> their cases in court.
>
> During her forthcoming confirmation hearing, senators should press
> Kagan to define her judicial philosophy. Several of the radical
> right-wingers on the Court define themselves as `originalists',
> claiming to interpret the Constitution consistent with the intent of
> the founding fathers.
>
> I would like to hear Kagan say that her judicial philosophy is that
> human rights are more sacred than property interests. I would hope
> she would declare that her judicial philosophy favors the right to
> self-determination - of other countries to control their destinies,
> of women to control their bodies, and of all people to choose whom
> they wish to marry.
>
> Kagan is likely to be circumspect about her views. She will
> frequently decline to answer, protesting that issues may come before
> the Court. We should be wary about how Justice Kagan will rule when
> they do.
>
> * * *
>
> Marjorie Cohn is a professor at Thomas Jefferson School of Law and
> past President of the National Lawyers Guild. She is the author of
> Cowboy Republic: Six Ways the Bush Gang Has Defied the Law [1] and
> co-author of Rules of Disengagement: The Politics and Honor of
> Military Dissent [2] (with Kathleen Gilberd). Her anthology, The
> United States and Torture: Interrogation, Incarceration and Abuse,
> will be published in 2010 by NYU Press. Her articles are archived at
> www.marjoriecohn.com
>
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