“She is certainly a fan of presidential power.”

Monday, May 10th, 2010

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 Elana 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. SoKagan 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 whyKagan 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 certainlyleave the Supreme Court more law enforcement-friendly and more hostile to criminal defendants than he found it.

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24 Responses to ““She is certainly a fan of presidential power.””

  1. #1 |  zendingo | 

    ahhh, memories of the best little strip club in Utah……..

  2. #2 |  Kagan Supremo:“She is certainly a fan of presidential power.” « BUNKERVILLE | God, Guns and Guts Comrades! | 

    […] would agree on this point. His Czars are moving right along with his agenda of centralized control. http://www.theagitator.com/2010/05/10/she-is-certainly-a-fan-of-presidential-power/ The next appointment will be the “big one” Posted in Government. Tags: Barack Obama, […]

  3. #3 |  Matt I. | 

    Extremely disappointing. The rabid right wing keeps screaming for more authoritarian rule, and the left keeps capitulating. What amazes me now is that for all pratical purposes, ANTONIN SCALIA will be the Supreme Court’s THIRD MOST LIBERAL JUDGE.

    It’s just hopeless. All the articles about all the abuses in the world are going to amount to nothing with this court makeup.

  4. #4 |  Marty | 

    I was reading the Reason article on Stevens’ mixed record and the analogy about ‘best strip club in Utah’ popped up. I suddenly had a vision of Kagan working in this club. So much for breakfast.

  5. #5 |  Obama picks Kagan as next US Supreme Court justice - Page 3 - INGunOwners | 

    […] and desire for social change and you have the capacity for a really bad pick here. via The Agitator […]

  6. #6 |  Kristen | 

    No President is EVER going to nominate someone who is strong on civil liberties and who has any sort of anti-government leanings. Ever.

  7. #7 |  Dave Krueger | 

    You buncha fear-mongering whiners. I hate to let you in on a secret, but the reason government fails at stuff can be traced back to one cause. They just don’t have enough power. Every new President comes into office with grand plans to save the country from financial doom, war, poverty, the scourge of drug abuse, and the plague of nudity, sex, and bad language on TV and in video games. Little do they know, until they get elected, that they will be defeated at every turn simply because of you few remaining dickheads who stubbornly cling to the out-dated notion that the Constitution imposes limits on what government can do.

    Obama could be a miracle worker, but even an Olympic swimmer can’t make any headway if he has an anvil tied around his neck. The Constitution is Obama’s anvil. Put yourself in Obama’s place. The Constitution is a document that sows distrust of government. How would you like to be tied into a straight jacket when you know you have so much to offer?

    Kagan is exactly the kind of person we need on The Court to unchain Obama’s raw power so he can lead us out of the fearful present into a safe secure future.

  8. #8 |  Aaron | 

    Kristen, that’s just not true. There have been supreme court decisions supporting civil rights, and reining in the power of government. The justices who made those decisions were indeed appointed by presidents.

    Yes, most presidents are authoritarian douches who enjoy their powers, and want them expanded. But they’re not all 100% identical, and saying “they’re all bad” throws away the ability to make distinctions that we *must* make in order to slow (and hopefully reverse) governmental overreach.

  9. #9 |  qwints | 

    “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”

    QFT!

  10. #10 |  lunchstealer | 

    “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 dismissive on promises that would limit the power of government and protect our rights and freedoms”

    FIFY

  11. #11 |  Kristen | 

    They’re all bad.

  12. #12 |  flukebucket | 

    But some are worse than others.

  13. #13 |  Julian | 

    When both parties seem to exist primarily to expand and defend the prerogatives of the wealthy, the mighty, and the elected, is it really useful anymore to talk about a right and a left? When neither party shows an interest in upholding the natural rights of human beings for anything more than hollow propaganda; when neither party stands for a reduction and humanization of police power; when neither party stands for the economic rights of the citizen and the immigrant in relation to the employer; when all these points hold true is there really any useful purpose served by maintaining the illusion of elite conflict within our polity?

    What we have now is what every political system faces when the wealthy take over government; a kleptocratic economic regime dedicated to redistributing wealth upwards and a malleable political class, drawn by and large from the fraternity of wealth, dedicated to continuing it. While the banks and car companies “pay us back” with our own money and obvious accounting trickery millions of families are thrown into the street, and while senators argue over whether its really fraud when a banker tells you he’s selling you something to protect your wealth when he’s really selling you another thing designed to steal it from you, our retirement funds and 401k’s melt away. As our debt piles up and our military finds itself increasingly committed to increasingly peripheral conflicts, men and women sitting in Washington who have never lifted a sack of concrete or swung a hammer on a hot summer day in their whole lives; individuals who will retire at 50 to lives in think-tanks and college faculties drawing quarter million dollar paychecks for writing five articles a year, are telling us we’ll have to work into our 70s and 80s as dignity-less Walmart wage-slaves to cover the cost of their profligacy and theft. Can anyone say with a straight face that these people defend our interests?

    It’s high time we recognized that they are working against, not for us, and started working for ourselves. It is high time we admit that Marx got at least one thing right; the rich lookout for their own, and it’s time we started doing the same.

  14. #14 |  Jason | 

    Do any of the sitting Justices have any criminal defense experience?

  15. #15 |  Julian | 

    Jason: No, they’re all either judges, prosecutors-turned judges, or academics.

  16. #16 |  Re-order in the Court? « HYSTERICAL RAISINS | 

    […] Radley Balko suggested that Kagan will come down on the side of government on a range of […]

  17. #17 |  david | 

    We need a justice who will expand lawrence V Texas to stricken laws against prostitution between consenting adults in private and stricken all laws against nude bars and adult video and sex toy stores as well as gambling laws.

  18. #18 |  I Don’t Care Much About Elena Kagan « Tired of Dystopia | 

    […] May 10, 2010 · Leave a Comment As someone who’s decided to comment on politics, I feel somewhat obligated to comment on the Elena Kagan nomination, but it’s hard to care too much. Like Sotomayor, she’s pretty biased towards the system–police, prosecutors and Presidents–and doesn’t seem to be too much concerned about the rights of the accused. […]

  19. #19 |  supercat | 

    I would like judges questioned on issues like: “What are the tradeoffs between correctness and consistency” and “When, if ever, should precedent justify a decision that would be unjustifiable in its absense”?

    I would suggest that the only time consistency should be valued over correctness would be if inconsistency would magnify the wrong harm by an incorrect/illegitimate decision. Likewise, the only time precedent should be be used to justify an otherwise-unjustifiable decision would be if the precedent was illegitimate, but its effects would be made worse by a direct reversal; in that case, the proper course of action would be to openly state what was going on.

    To use a rough analogy, if the Home Plate umpire calls “strike” on the first nine pitches in a baseball game, all of which roll to the plate, and then quits, it might be reasonable for his replacement to announce that he would be similarly generous to the opposing pitcher for the remainder of the inning. Not because calling “strike” on ground pitches is proper, but because the net effect of such behavior would be to eliminate the bias caused by the first pitcher’s actions.

    To be sure, such action would be outside the rules of the game, but that’s a fundamental problem with any government: it’s impossible to design a set of rules to provide adequate remedy for all types of illegitimate action by officials. Either officials must have some ability to fashion remedies outside the rules should the need arise, or else some officials will be implicitly able to violate some rules with impunity.

  20. #20 |  Mark @ Israel | 

    I heard Kagan’s adept in synthesizing legal and political concerns. I hope she doesn’t become an instrument for Obama to turn illegal political moves into something legal.

  21. #21 |  Irreducible Complexity - In The Agora | 

    […] Bush-era security measures, including assassination of American citizens, and has nominated “fan of presidential power” Elana Kagan to replace unlikely liberal lion John Paul Stevens on the Supreme […]

  22. #22 |  Meet the New Boss, Part Two: Executive Power and Police Statism | 

    […] hard-line defender of law enforcement in criminal justice issues.  “In her current position,” Radley Balko writes, “Kagan and her subordinates have filed amicus briefs and argued the pro-prosecution, […]

  23. #23 |  Meet the New Boss—Part II: Executive Power and Police Statism « Little Alex in Wonderland | 

    […] her current position,” Radley Balko writes, “Kagan and her subordinates have filed amicus briefs and argued the pro-prosecution, […]

  24. #24 |   Irreducible Complexity « Olde Frothingblog | 

    […] Bush-era security measures, including assassination of American citizens, and has nominated “fan of presidential power” Elana Kagan to replace unlikely liberal lion John Paul Stevens on the Supreme […]

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