Criminal Justice

“She is certainly a fan of presidential power.”

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The quote is from William F. West, a professor of federal administration at the Bush School of Government and Public Service at Texas A&M, commenting to the Boston Globe on Obama Supreme Court nominee Elena Kagan shortly after she was nominated to be solicitor general last year. The New York Times' Charlie Savage explains how a Kagan nomination could shift the balance of the court on key civil liberties vs. war on terrorism issues.

But Kagan's pro-government position extends to criminal justice issues, too. In her current position, Kagan and her subordinates have filed amicus briefs and argued the pro-prosecution, pro-law enforcement position in every criminal justice-related case to come before the Supreme Court since Obama took office. In cases where the constitutionality of a federal law was in question, you could argue that because of her position, Kagan was obligated to defend the law whether she agreed with it or not. But her office could at the very least have merely remained silent on cases like Alvarez v. Smith (a challenge to the Illinois asset forfeiture law, which is much more government-friendly than the federal law), or Alaska, District Attorney's Office v. Osborne (arguing that the states should grant post-conviction DNA testing if doing so could show factual innocence).

Kagan's office also argued against expanding the rights of the accused and wrongly persecuted when a specific federal law wasn't in question, such as when she argued that prosecutors who manufacture evidence that leads to the conviction of an innocent person should not be subject to lawsuits (Pottawatomie vs. McGhee), and that the Constitution's Confrontation Clause doesn't protect the right to cross examine forensic experts (Melendez-Diaz v. Massachusetts). Most recently in U.S. v. Stevens, her office argued in favor of a federal law banning the sale of videos depicting animal cruelty, taking a broadly censorious position that First Amendment rights be balanced with "societal costs."

That position was rebuked as "preposterous" in an 8-1 opinion authored by Chief Justice Roberts. Which makes Kagan more pro-censorship than Roberts, Scalia, Kennedy, or Thomas. (She also argued the pro-censorship position in Citizens United, but while no less troubling, that's less surprising.)

It's also not surprising to hear that Kagan and Obama "think alike." Obama's rhetoric on civil liberties shifted nearly the day he took office. When it comes to fulfilling campaign promises, Obama has been bold and fearless in pursuing policies and initiatives that expand the size and power of government (and, consequently, his own power), and somewhere between compromising and submissive on promises that would limit the power of government and protect our rights and freedoms. So Kagan may well be the perfect nominee for him. She's a cerebral academic who fits Washington's definition of a centrist: She's likely defer to government on both civil liberties and regulatory and commerce issues. And though libertarians allegedly share ground with Republicans on fiscal and regulatory issues and with Democrats on civil liberties issues, neither party cares enough about those particular issues to put up a fight for them. Which is why Kagan sailed through her first confirmation hearings, and is widely predicted to sail through the hearings for her nomination to the Supreme Court.

Justice Stevens' reputation as a stalwart defender of civil liberties was probably overstated. Which makes it all the more disappointing that Obama's choice to replace him will almost certainly make the Court even less sympathetic to the rights of the accused. And taken with Obama's decision to replace Justice Souter with Sonia Sotomayor, a former prosecutor with a "tough on crime" reputation, the candidate who touted his days as a community organizer for the powerless and dispossessed and who decried the criminal justice system's disproportionately harmful treatment of minorities and the poor during the campaign will now almost certainly leave the Supreme Court more law enforcement-friendly and more hostile to criminal defendants than he found it.

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54 responses to ““She is certainly a fan of presidential power.”

  1. I think you got it right, Radly.

    1. Perhaps he has. Perhaps he has, sir. And don’t even think about “appropriating” any of my legal fiction, sir. I won’t ask for a word, I’ll just break your kneecaps.

  2. I saw a recent video of her and was disturbed by how closely she resembled Dick Morris in drag. Maybe it was the lighting and makeup, but it seems to me that this is reason enough to reject her.

    1. I think she looks more like Jon Lovitz in drag.

      1. OK, so if Dick Morris and Jon Lovitz had a baby through what would have to be anal intercourse (a protected form of “speech”) their love child would look like Kagan. Agreed?

        1. I hope you guys are trolls, and that lame jokes like this are aren’t the preferred “wit” of actual Reason readers. Plus here’s where I’m putting my money: most people who tell jokes like this pretty much are walking eyesores themselves, hence the insecurity.

          1. Nah, I’m quite adorable. But enough about me. I’ll bet Rachel Maddow is creaming her man-suit over this nomination.

            1. Most REASON readers tend to be tolerant, sensible people. But some conservatives trolls can get in when access is free, and then they have to make their usual bigoted remarks. I wish they would go back to the Right-wing swamp from which they emerged.

              And no, that doesn’t mean I like Kagan. It means I dislike bigoted aholes.

  3. Radley,

    When you say Kagan is more pro-censorship than Roberts, Scalia, Kennedy, or Thomas, you imply (if not logically, then at least informally) that those gentlemen have a history of being “pro-censorship.” Can you cite an example?

    I think it’s beastly that Kagan would have ruled that 1st Amendment protections be balanced with “societal costs,” of course.

    1. I think it’s beastly that Kagan would have ruled that 1st Amendment protections be balanced with “societal costs,” of course.

      That is pretty cringe-worthy, I agree… but then again, not too surprising from someone who clearly sees herself as part of the mandarin ruling class.

      It’s not that we don’t agree that frog stomping videos are ghastly, it’s the government asserting that it can wisely appropriate such power for itself without finding some other “social cost”-ly target somewhere down the road.

      1. the government asserting that it can wisely appropriate such power for itself without finding some other “social cost”-ly target somewhere down the road.

        Me today, you tomorrow.

  4. Shit, Radley. It’s way too early on a Monday morning for news like this.

    1. Man, it is hard to get used to, isn’t it? It’s almost like there is something new and vastly important being drug up in front of us every single day, doesn’t it?

      No rest, nothing but advancement of agenda.

  5. Radley is a psychic vampire, Mr. Ard. He feeds on the grief of libertarians.

    He’s been eating very, very well in recent years.

  6. Oh, and congratulations on your award, Radley. Although I suspect that saving lives is reward enough for you.

  7. Hope she isn’t being considered for this position based purely on her looks…

    1. No way.

  8. I thought you didn’t kick us in the nuts until Friday? And now, right out of the gate on Monday – WHAM!

    Geez…get an award, and now it’s nut kicks all week…

  9. Too bad the first lesbian nominated to the court has to be such a statist jackass.

    1. I’m pretty sure it goes with the territory.

  10. How is this fat broad any more qualified than Harriet Miers?

    1. If you go to Harvard Law, you are instantly qualified for any job. Didn’t they tell you?

      1. If you go to Harvard Law, you are instantly qualified for any job. Didn’t they tell you?

        That’s what I’ve been saying in job interviews since day one.

        1. Harvard Massachusetts, not Guatemala.

    2. How is this fat broad any more qualified than Harriet Miers?

      Have you not noticed that she fits the the current politically correct requirements and ideology without regard to actual qualification?

      We Lawn Gnomes are just as, if not more, qualified to be judges, as we are a vigilant, observant and impartial people with long memories.

    3. The common man has to have experience to get any position in the US. Only the very worst jobs, designed for high schoolers getting their first official job, and political positions in DC are open to people without a minute of experience.

      You wouldn’t hire a welder who had never seen an acetylene tank.

      You wouldn’t hire a mechanic who had never opened the hood of a car.

      No experience. At a time when we need the most competent leaders we can get, we get the product of some identity politics based calculation.

  11. Too bad the first lesbian nominated to the court has to be such a statist jackass.

    We Lawn Gnomes have noticed that the minority groups in America have very much a vested interest in propagating the expansive, all-encompassing State. From our perspective, they are merely showing reverence and loyalty to the State whom they feel has legitimized and empowered their respective group(s).

    We Lawn Gnomes are a homogenized and apolitical people; we are content with a lawn to spy, not ruin our home due to a vindictive ideology.

  12. I am shocked to learn that the newest addition to the federal government is an ivy league statist.

  13. Oh, joy, another unqualified statist. I thought the unqualified part was bad, or was that only when Bush did it?

    1. If you’re a statist, you can’t be unqualified, you teabagging racist.

      1. Yes, you’re right, of course. There’s only one qualification, and she has it.

  14. such as when she argued that prosecutors who manufacture evidence that leads to the conviction of an innocent person should not be subject to lawsuits

    I don’t even accept the claim such people should not be subject to a bullet in the back of the head.

  15. Here we go; he’s on right now.

    Goddammit, this guy loves the sound of his own voice!

    And, it’s….. Elena Kaganovski!

  16. Can we bomb the Harvard Law School to smouldering rubble, and claim self-defense?

  17. shit sandwich for breakfast, anyone?

    1. I’ll have one.

  18. Can we bomb the Harvard Law School to smouldering rubble, and claim self-defense?

    RC Dean would probably not be keen on that idea. However, since it seems to us Lawn Gnomes that you Americans tend to select your leaders from Ivy League schools and the results has been less than stellar.

    We Lawn Gnomes are pacifists, but would not blame you to use extreme measures to curtail an expansive and insidious element.

    1. You’d be surprised.

  19. C’mon. She’s the Solicitor General. Her job is to defend the federal government from any and all Constitutional challenges. What did you expect, that she’d be some kind of limited-government, original-intent, my-copy-of-the-Constitution-is-quite-inanimate Justice?

  20. She’s the Solicitor General. Her job is to defend the federal government from any and all Constitutional challenges.

    Okay. But that doesn’t make a particularly compelling case for her as a Supreme. That “checking-and-balancing separation of powers” thing kind of goes out the window if the Chief of the Executives gets to exclusively park people who agree with him in those seats.

    Oh, wait, I forgot; the Senate will prevent that from happening. Because they can be relied on to act in the best long term interests of the nation.

  21. Much as I’d like to, I don’t buy it. For the SG to behave like a slavish government lackey is exactly what the job entails. That fact that she’s been doing it doesn’t mean that she’s a closet totalitarian, it just means that she’s doing what she’s paid to do. At worst, that makes her a ‘ho, not some sort of Mussolini in a pants suit.

    But I’ll agree that the weird idea that Stevens is a defender of civil liberties is just that – weird, as we know without question from his dissent in Heller. In that single dissent, he casually rubbished the entire concept of a written Bill of Rights. For an American judge, it was a disgraceful performance.

    1. For the SG to behave like a slavish government lackey is exactly what the job entails.

      This is true and a fair point, but you have to consider why she’s in the job in the first place. Obama isn’t going to pick a Junior Scalia (whoever that is), he’s going to pick someone with whom he is comfortable ideologically (or more precisely, someone who is comfortable with him ideologically). There are lots of administration-transcendent government jobs in Washington, but Solicitor General isn’t one of them.

      But, I do agree, it’s unfair to attack her solely as a lackey or a hack. That’s a good point.

      1. All of this is right. Remember that not so long ago, this shoe was on the other foot, and us Righties correctly made the point: you cannot necessarily infer judicial philosophy based on the positions that one advocates. As SG she argued exactly what the boss told her to, even if she thought it was stupid, because that’s what the SG does. Granted, you’re going to hire someone for the job who mostly agrees with you, but I contend it is disingenuous to claim that arguing for a point as counsel in court is the functional equivalent of holding that point yourself.

        Not that I am supporting her, just saying let’s show ourselves as better than the left by arguing according to the rules.

  22. This is like Phil Jackson trying to get Jack Nicholson to referee game 7 of the NBA Finals. Good thing the NBA isn’t run by Hollywood elites. And good thing Washington isn’t run by Harvard elites! Zing!

  23. Kagan, as many have noted, has absolutely no judicial experience. This itself isn’t necessarily a problem, but compound that with the fact that she has little experience in the courtroom at all. She (less-than-impressively) argued a handful of cases given to her as Solicitor General in the past year or two. Other than than, she had a 2 year stint as a clerk. No remarkable track record as an attorney and no experience in an appellate court. She is an academic at heart. Worse, even as an academic, she’s only published a handful of papers. She’s easily the least qualified of all the candidates on Obama’s shortlist (Wood, Garland, and Thomas) and “long-shot” list (Karlan, Sears, etc.).

    How did she get the nomination? Oh yeah… she worked as a professor alongside Obama at the University of Chicago and, like Obama, gradated from Harvard Law back in the 1980s. So Obama picks her to be Solicitor General, and then, after a few years of cheerleading for executive power, she’s chosen for the Supreme Court. See the picture?

    Even Republicans knew better than let Bush get away with Miers. The Democrats are cowards if they don’t stop this disgrace.

  24. I have nothing against lesbians, but does this freak show ever end? Its seems in order to work for or be selected by Obama you need some “redeeming” characteristic in addition to a love of wide government reach. That characteristic could be you are a communist, you were a (self-declared) communist, you are known to believe in Marxism/redistribution, you believe in black liberation theology, you have said hateful things about your country, you are part of the sexual counterculture (GLBT), you are an anti-white racist, you are a past criminal or thug or the sort of guy who would threaten someone while standing naked in the shower. Regular, patriotic, hetersexual, private sector-working people need not apply.

    BTW, if you heard the speech this morning you would now know that rather than being a negative, a person who has never worked in the private sector is elevated above the rest of us for their service. Government service, including teaching, is now the height of patriotism. Smoke that.

    1. In my experience virtually everyone is a member of a “sexual counterculture” in one way or another. Some are just more honest about it. The scandals of conservatives caught up in some “sexual counterculture” that is outside the mainstream seem to verify this. Often the most mainstream types on the surface are the most counterculture when the bedroom doors are closed. I have concluded that there is no such thing as “normal” just a whole lot more variety than most are comfortable discussing.

  25. My impression so far is that she is the epitome of an honest lawyer, by which I mean that she fully represents the interests of her employer.

    So, who will she perceive as her “employer” when she is on the Supreme Court, what will she perceive as that employer’s interests, and will she still feel bound to represent them? If the answers are “The People,” “The Constitution,” and “yes” respectively, then she may exceed expectations.

    1. Let me answer for the late Murray Rothbard, who explained in For a New Liberty that the Supreme Court was a sort of high-priesthood for the State, whose job was to put a sort of religious veneer on the rights violations of Big Government. To justify the ways of the State to the common man.

      So, if the High Priests work for the State, then we’ll have a new High Priestess who seems well suited to the role.

      1. By that definition, all courts are bogus institutions of Big Government. Anarchy is childish.

        1. So you don’t see any problems with the government being in charge of interpreting the manual wherein it’s own supposedly limited and enumerated powers are spelled out? You don’t see a problem with this? A conflict of interests perhaps? Either in theory or in practice? And you call Anarachist childish? Statism is so naive.

    2. Best known as a law breaker, bans military from campus because of DADT, now works for the team that could change that but doesn’t. That doesn’t make her someone who ‘rides for the brand’. That makes her a lickspittle.
      See how I got that Bush era cowboy theme in there?

  26. If Ms. Kagan and President Obama “think alike”, then we can be pretty sure that she will change from a fan of presidential power to a fan of judicial power. President Obama wanted to restrain executive power when he was a Senator, and he changed his views on the limits of executive power pretty quickly once he was sworn in as president.

    A similar conversion in Ms. Kagan will cause her override the executive and legislative branches with judicial wisdom. She won’t oppose expansion of Federal power, she will just change her views on who gets to say how that power is used.

  27. I love the Mandarin Ruling Class comment. It’s SOOOO appropriate!

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