Glenn Greenwald on Why Elena Kagan Would Shift the Supreme Court to the Right

http://www.democracynow.org/2010/4/13/glenn_greenwald_on_why_elena_kagan

Glenn Greenwald on Why Elena Kagan Would Shift the Supreme Court to the Right and the Death of Dawn Johnsen’s OLC Nomination

On Capitol Hill, speculation is growing over who President Obama will nominate to replace the retiring Supreme Court Justice John Paul Stevens. Speculation has centered on three top contenders: Solicitor General Elena Kagan, US Appeals Court Judge Merrick Garland and US Appeals Court Judge Diane Wood. But the White House says about ten candidates remain under serious consideration. Salon.com blogger Glenn Greenwald joins us to talk about some of the contenders, in particular Elena Kagan.

AMY GOODMAN: Glenn Greenwald, I’d like you now to go through talking about who—how you evaluate some of these candidates. Your latest blog is called “The Case Against Elena Kagan” at Salon.com. Why?

GLENN GREENWALD: I think the starting point has to be that the three nominees, likely nominees, identified correctly by Nan Aron as the frontrunners—Elena Kagan, Judge Garland and Judge Wood—of the three, none of them would be more progressive than Judge Stevens. I don’t think there’s a single person anywhere who would suggest that that’s the case. There are a couple of possibilities, like Harold Koh and Pamela Karlan, whom Nan also discussed, who very well may be as progressive as, if not more progressive than, Justice Stevens, but most people believe that they’re not really viable choices. But the three frontrunners certainly are not more progressive than Judge Stevens.

And I think it’s very clear that two of them, Elena Kagan and Judge Garland, would actually be more conservative, perhaps much more conservative, than Justice Stevens would be. So what we’re talking about, if either of those two individuals are chosen—Elena Kagan, the current Solicitor General, or Judge Garland—what you’re really talking about is the effect of moving the Supreme Court to the right. Remember, this is a Supreme Court that’s already dominated by conservatives. You have Justices Scalia, Thomas, Roberts and Alito forming a basically impenetrable right-wing bloc, with Justice Kennedy, who was a Reagan appointee, frequently joining them.

<snip>
And what little there is to see comes from her confirmation hearing as Solicitor General and a law review article she wrote in 2001, in which she expressed very robust defenses of executive power, including the power of the president to indefinitely detain anybody around the world as an enemy combatant, based on the Bush-Cheney theory that the entire world is a battlefield and the US is waging a worldwide war.

..more..

No thank-you! :(

nt

n/t

He's a republican, Glenn. Start there then retrace your steps again.

just look at his record

His record is to follow the law, which isn't hard to do. It's written down on paper and everything. He just happens to be an honest jurist. Conservatives of his caliber hardly exist today, and where they do, they get called liberals for their honesty.

And how that matters. Stevens is a liberal in part because the court has been moved to Teabagger territory by hard ideological right Republican Presidents and impotent appeasing Democrats, but he's ALSO a liberal because Gerald Ford had to nominate someone who would be accepted by the Democratic Senate, which at the time was about as left as it has ever been. He had to be deemed acceptable not just for the Supreme Court, but also as the replacement for a liberal justice on the Court. The Democratic Party in 1975 had been radicalized and moved left by the debacle of Vietnam, the progress of civil rights, and the polarizing scandal of Watergate in which the national security apparatus of the state had been used against them. To give a flavor of its mood, the Democrats had just nominated George McGovern, who promised a unilateral end to the Vietnam war, in the most recent Presidential cycle. They had impeached a corrupt President with acquiescence of Republicans, and would be moving on to holding extensive Senate hearings on the abuses of the CIA and FBI in the same year John Paul Stevens was nominated to replace Justice Douglas on the Court. Douglas was the most liberal and activist Justice on the court at the time of his retirement: he could not be replaced by a Rehnquist Republican -a conservative- without starting a war with Capitol Hill. It's uncertain whether Ford would have preferred to nominate someone like William Rehnquist. But in the post-Watergate environment in which he was President without having been elected and in which he faced solidly a Democratic and ideologically mobilized Congress, he wasn't about to nominate a Rehnquist rightwinger. He had to give the Democratic Congress someone they could like. They confirmed the nomination 98-0 in the Senate.

He said the potential nominees would not be 'as progressive as' Justice Stevens. Stevens was not ideological, he was for justice. In that sense you could say he was a Liberal. Isn't that what being a Liberal is? I know how the Right has defined the term. But in reality, standing up for the rights of all people, making sure everyone is treated fairly and with equal justice, is what being a Liberal means to me.

That is why imo, no Liberal could ever support the notion that any president in a democracy should have the right to indefenitely detain any human being. Presidents are not kings. We have a judicial system that ought to be able to deal with any criminal case.

If Obama chooses Kagan, who believes in that theory, then Greenwald is right. She would be more Conservative than Stevens who is a Conservative, but a Liberal in his judicial opinions which were never based on ideology. Believing in a Unitary Executive is anti-Constitution, and I cannot imagine Obama, who is a Constitutional lawyer, doesn't not know that.

If ever it was needed to find a Liberal candidate, it is now. I read somewhere recently that for the last 40 years, the SC has been moving more and more to the right. It desperately needs a balance, and this is the only opportunity to do that for a long, long time.

No doubt about it. And the whole rest of the government, too.

Where have I heard that surname before?

Just great.

:puke:

and he had harsh words for Sotomayor as well.

http://www.pointoflaw.com/archives/2009/07/glenn-greenwald.php