Light blogging this week, as I’ll be joining a few others to fill in for Glenn Reynolds at Instapundit.
Glenn has an enormous platform. I’m thrilled he’s giving me an opportunity to bring some exposure to the issues we cover here.
I will post at least one open thread per day so y’all can yak, exchange links, and, of course, evaluate my performance over there.
Lots of you have sent me this story.
I think it’s too early to draw any conclusions. It appears the police were looking for a homicide suspect. If they had intelligence that he posed a direct and immediate threat to others, the tactics may have been justified. On the other hand, there may have been other, less confrontational ways to apprehend him. It appears the little girl was shot by accident, and the suspect was not the cause of the gunfire. That’s a reminder of just how volatile and dangerous these raids are. Which is another argument in favor of reserving them for only those times when you have a suspect who presents a violent, imminent threat.
It’s also possible that these were perfectly appropriate tactics for the situation at hand but the SWAT team did a poor job of implementing them. That wouldn’t be something on which I’d be qualified to have an opinion.
We’ll see in coming days whether SWAT and flashbangs were an appropriate way to apprehend this particular suspect.
Sympathies to the family of Aiyana Jones. Heartbreaking.
MORE: Via “Ken” in the comments, according to this article the police were raiding both portions of a duplex. The little girl’s family says the suspect was found in the other apartment. The police are only saying that the warrant covered the entire building. According to the article, neighbors say they told police there were children in the home, and there were toys in the yard.
If that all sounds at least a little familiar, it should. Bit of a chill just went down my spine.
Since I was a little tough on Treme this morning, let me make a recommendation: If you haven’t been watching HBO’s The Pacific, the companion miniseries to Band of Brothers, you should be. Catch up with your On Demand.
I just finished Episode 9. It was the most intense, wrenching episode hour of television I’ve ever seen. The series features some terrific acting, particularly James Badge Dale as Robert Leckie in the first half of the series, and Joe Mazzello as war hero Eugene Sledge in the second. (Mazzello is a high school friend of my ex-girlfriend. Really nice guy.)
I loved Band of Brothers, though I thought it came close to propaganda in places. There’s no such gloss to The Pacific. It is as dark and crushing a portrayal of war as I’ve ever seen on video. Without ever questioning the legitimacy or justness of the U.S. war effort in the Pacific (and I think even strident libertarians can agree it was both), it’s a potent, jab-to-the-chest lament against war, at least in the broad sense. The central theme of the series is Sledge’s struggle to retain his humanity as everything around him descends into hell. It’s not a novel theme for a war narrative, but it’s the execution that makes The Pacific so compelling. That, and the ambiguity. We’ve seen these themes in “what are we fighting for?” Vietnam War movies. They’re rarer in World War II movies. And despite a moment of redemption toward the end of Episode 9, I’m not entirely sure Sledge succeeds in preserving himself. The message: Even just wars can bend good men toward evil.
There’s a scene at the beginning of the series where Sledge’s father—a medic who served in World War I—tells his son that what most haunts him from the battlefield wasn’t the torn flesh, but the men who came back “with their souls ripped out.” That scene sets the tone for the rest of the series. Where Band of Brothers showcased the physical sacrifices of the World War II generation, The Pacific looks at the grimmer, harder to quantify emotional and spiritual casualties. It suggests in places that the men left on Pacific battlefields may have been better off than those who made it home. In that sense, it leaves you with a more complete and informed appreciation of what the World War II generation gave up.
And perhaps the rest of us, too. At the tail-end of Episode 9, a Marine makes a passing reference to a “new kind of bomb” the U.S. just dropped that “vaporized an entire city.” Another replies, casually, that that sounds great, because it’s “all about killin’ Japs,” a line echoed by Sledge earlier in the same episode as he nearly lost grip on his humanity. The sene is shot in warm tones, and there’s mention of cokes and steak for the guys we’ve just seen endure months of agony and barbarism. It’s a jarring but appropriate bit of ambivalence. The indiscriminately destructive power of the atom bomb ended the war, an unquestionably positive outcome. But in unleashing such a destructive technology, one that would eventually carry the capacity to end every life on earth a dozen times over, we also lost a piece of our collective humanity.
It hasn’t been an easy series to watch. But it’s been affecting, haunting TV. A few episodes in particular have stuck with me days after viewing them.
I’ve made it clear that I’m no fan of Wayne Allyn Root, the Las Vegas sports handicapper running for chair of the Libertarian Party. Root has also indicated that he plans to run for president in 2012 under the LP banner. I criticized Root last year for boasting about his appearances on Michael Savage’s syndicated radio show. Savage is a bigot, a warmonger, and a culture warrior. Not really the sort of platform libertarians should be seeking out. To put it mildly.
Now, Root has gone off the deep end. Or at least further off the deep end. Here’s a snapshot from his Facebook page:
Here’s a description of the “trial” to which Root is referring:
With thousands of spectators expecting to attend, Dr. James Manning’s ‘trial of the century’ of Barack Obama on charges of treason, fraud, and sedition begins tomorrow morning at 9 AM in New York City.
Co-defendants in the trial are Columbia University and the CIA.
In the last days of the run-up to the trial, Manning revealed that he has sources in government that will testify against Obama, Columbia, and the CIA. He also reported explosive information that Barack Obama has used upwards of 20 different Social Security numbers during his life.
Witnesses are expected to testify at the trial that Barack Obama was never a student at Columbia University, although he received a degree from the school…
Other witnesses are expected to testify that Obama fails the Constitutional test for Presidential eligibility due to the fact that his father was a British subject at the time of his birth and his mother was not old enough to confer citizenship when he was born.
A dramatic new revelation, however, may serve to re-emphasize the importance of the trial. The state of Hawaii, according to sources, did NOT accept his birth registration that was filed, despite issuing a ‘statement of live birth.’
This could mean that although the state issued a certification of live birth (which is NOT a ‘birth certificate’), the process for filing for an official birth certificate in 1961 was never completed and was thus not accepted by state officials…
Oh, but it gets better. According to a flier for the event, Obama . . .
. . . was a C.I.A. operative who used Columbia University as a cover to go to Pakistan in 1981 when the C.I.A. and the Mujahideen worked together against the Soviet invasion. Obama supplied arms, logistics, and money using his Muslim background.
Root indicates in prior Facebook entries that he doesn’t believe Obama actually attended Columbia University.
I never knew him…never met him…never saw him…never heard of Obama. Neither has anyone [sic] of my classmates. No one I know from Columbia University has ever met or heard of a classmate named Barack Obama or Barry Sotero. Strange, huh?
Root made a similar accusation in an interview with Reason. He was appropriately mocked for it. That Root wouldn’t have run in the same circles as Obama in a school with thousands of undergrads isn’t particularly strange at all.
Look, I’m not a member of the Libertarian Party, though I’ve spoken to several state conventions over the last couple years. I have my problems with the party, but I’d like to see it do well, in part because for better or worse the LP has a significant impact on how people view libertarianism.
So let’s be clear about this: If Wayne Allyn Root becomes the face of the LP, it will be an unmitigated disaster for the party. It will also likely do quite a bit of damage to the public perception of libertarianism as a philosophy.
This is batshit crazy, off-the-charts conspiratorial hogwash. There are plenty of legitimate reasons to criticize Barack Obama. Root has chosen to dip into angry-white-guy, “Obama’s a secret Muslim” absolute and utter lunacy.
Libertarians: The man is a nut. Associate with him at your peril.
At the 2010 Kentucky Derby.
Via Andrew Sullivan, John McWhorter finds David Simon’s new show challenging to watch:
I hate to say that I also think of HBO’s new series “Treme,” which is mesmerizing in its ways (I intend to keep watching) but leaves you beaten over the head every week about just how vibrantly real New Orleans is. Realer than where you live. Realer, really, than you.
Even if you think you love the place, “Treme” is determined to show you otherwise. The surly street musician (who is just visiting himself, from Amsterdam) tartly informs tourists that it’s tacky to request “When the Saints Go Marching In”—that tune isn’t “real New Orleans,” apparently. In fact if you listen to any music on Bourbon Street, there are those who will tell you you’re not experiencing—again—the real thing. And if you live in the neighborhood the show is named after, Treme, the last thing you have any right to do is ask for quiet even in the wee hours, because, as Steve Zahn’s Davis McAlary character says, “This is the Treme, dude!” and the noise is what makes it real.
A main message from this sultry pageant of a show is that New Orleans is an occult matter that you can never truly “get” unless you’re a native or pretty close to it. The perky, hopelessly “white” tourists from Wisconsin with their nasal voices, the ones who get schooled by the street musician, can be taken as stand-ins for the viewer. Which makes the whole enterprise strangely unwelcoming.
Sure, one could ask why it has to be welcoming, but that’s a less effective comeback when we are being told again and again how much we are supposed to love and admire New Orleans. If we have anything to say except that New Orleans is the heart of the United States, then John Goodman will try to hurl us into the Gulf, or at least tell us, as he did in a great but disturbing sequence last Sunday, to perform a certain action upon his gonads.
What’s especially challenging is a damned if you do, damned if you don’t quality: criticize New Orleans, or even don’t pay quite enough attention, and you’re a chump—but praise it and you’re probably doing it wrong.
I’ve come away with a similar feeling after the first several episodes, though I think this commenter to McWhorter’s piece makes a good point:
I’ve been watching closely, and although many of the characters are prickly about authenticity and consumed with anger, I don’t think that Simon is presenting their attitudes uncritically. He’s just presenting them. The city itself is full of warring authenticities–each person’s New Orleans is the only real one, and they’re not all identical. Goodman’s character’s rant about NYC and Chicago was not meant as objective truth.
This criticism from McWhorter resonated with me, too:
…there is a fill-in-the-blanks quality in putting the characters through their paces that almost never felt as self-conscious in The Wire. Which character will be denied flood coverage because his policy was only for hurricanes? Which character will do an angry riff about light-skinned creoles looking down on darker ones? What local term will be tossed off in tonight’s episode that will send bloggers to Wikipedia (second line in the premiere, lagniappe last Sunday)?
There was a lot of talk about how Simon wanted to “get New Orleans right” for this show. Seems to me that those efforts have so far come at the expense of likable, relatable characters. The Wire‘s appeal came in the depth and appeal of its characters. The show was chock full of flawed heroes and sympathetic villains. More importantly, the characters felt organic. They never came off as punch-outs created to represent specific factions or demographics. (Save for the fifth season newsroom.) I think I’ve had a hard time embracing Treme thus far because few of the characters have that same authenticity. They feel perfunctory. (Though Wendell Pierce’s charm and acting chops bring Antoine Batiste to life, in spite of the character’s caricature-ishness).
David Simon doesn’t pander to his viewers. So I’m still optimistic that there will be a payoff in the second half of this season. I’m hoping he flips some of these characters upside down. But so far it feels like he is pandering to his own insecurities about being a white, fanboyish outsider doing a TV series about New Orleans. The Wire was a character-driven drama that when all was said and done was really a story about Baltimore. It took two full seasons for the series to begin to pan back and reveal itself as such. Treme feels self-consciously about the city . . . first, early, and often. That’s fine if you’re making a documentary. But so far, it’s made for unconvincing drama. Of course, it’s still one of the better shows on TV. Simon created and maintained the greatest show in the history of television. It’ll probably be his burden that everything he does going forward will come with the expectation that he do it again.
Over the last few weeks, I’ve noticed more and more retail outlets who instruct cashiers to ask me for donations to various causes when I’m making a purchase. I was hit up a couple of times two donate a dollar or two to breast cancer awareness last week, today at Costco for children’s hospitals, and for a panoply of causes pretty much every time I’ve gone to Whole Foods for the last year. My favorites are the two big pet supply retailers, Petco and PetSmart, where they ask you to donate to various homeless pet charities. You’re presumably standing there because you’ve just bought something for your own pet. How cold do you have to be to refuse an extra dollar for pets without homes? You bastard.
It’s usually only a dollar or two, but I’m starting to find all of this a bit irritating. I have no quarrels with companies that put out a display or collection bucket, or let workers from the charity come and ask for donations on the premises. (To give one example, I think IHOP’s “free pancake day” fundraiser is brilliant. And delicious.) But the popular tactic of late seems to be to put the customer on the spot. Customer then looks like an asshole if he declines to toss in an extra dollar or two for whatever cause the company happens to be pushing. I mean, you can’t spare a buck? What, are you pro breast cancer?
Thing is, there’s no time to check to see if the cause is actually worth supporting. And frankly, there are plenty of noble-sounding causes that aren’t. (See the American Cancer Society or the American Heart Association, both of which push for Nanny State legislation, for example.) At the end of the campaign, the company then gets to present a big check to the given cause and get “corporate citizen” points, when all it’s really done is charge its customers a couple bucks per visit to feel free of guilt for the rest of the day. Or at least until the next time they’re hit up at the check-out line.
I realize that many of these companies do make significant contributions to various causes outside of these campaigns. That doesn’t make the campaigns themselves any less annoying.
Here’s my suggestion: Next time the YuppieCorp cashier asks if you’d like to donate $3 to purchase progressive jazz CDs for Haitian orphans, ask if YuppieCorp will be matching your donation dollar for dollar. That at least makes some sense. If the answer is “no” or “I don’t know”—and I suspect that will usually be the case—politely reply that you have your own causes and charities you support.
“….Elena Kagan was right when she said back in the 1990s that the confirmation process is a joke. The Supreme Court is too important to give these nominees a pass, and to confirm them before we know more about their respective legal philosophies. That said, despite the fact that I know very little about Elena Kagan’s approach to constitutional jurisprudence, and she isn’t likely to be reveal much if any of it in her confirmation hearings . . . . she should be confirmed.”
Seriously, is it me or do the last three words of Marcus’ column basically cut against everything else she wrote?
A reader who asks his name not be used writes about the drug raid video from Columbia, Missouri:
I am a US Army officer, currently serving in Afghanistan. My first thought on reading this story is this: Most American police SWAT teams probably have fewer restrictions on conducting forced entry raids than do US forces in Afghanistan.
For our troops over here to conduct any kind of forced entry, day or night, they have to meet one of two conditions: have a bad guy (or guys) inside actively shooting at them; or obtain permission from a 2-star general, who must be convinced by available intelligence (evidence) that the person or persons they’re after is present at the location, and that it’s too dangerous to try less coercive methods. The general can be pretty tough to convince, too. (I’m a staff liason, and one of my jobs is to present these briefings to obtain the required permission.)
Generally, our troops, including the special ops guys, use what we call “cordon and knock”: they set up a perimeter around the target location to keep people from moving in or out,and then announce their presence and give the target an opportunity to surrender. In the majority of cases, even if the perimeter is established at night, the call out or knock on the gate doesn’t happen until after the sun comes up.
Oh, and all of the bad guys we’re going after are closely tied to killing and maiming people.
What might be amazing to American cops is that the vast majority of our targets surrender when called out.
I don’t have a clear picture of the resources available to most police departments, but even so, I don’t see any reason why they can’t use similar methods.
I’ve heard similar accounts from other members of the military. A couple of years ago after I’d given a speech on this issue, a retired military officer and former instructor at West Point specifically asked me to stop using the term “militarization,” because he thought comparing SWAT teams to the military reflected poorly on the military.
Back in 2007 I wrote a bit more on this:
There’s a telling scene related to all of this in Evan Wright’s terrific book Generation Kill. Wright was embedded with an elite U.S. Marine unit in Iraq. Throughout his time with the unit, Wright documents the extraordinary precautions the unit takes to avoid unnecessary civilian casualties, and the real heartbreak the soldiers feel when they do inadvertently kill a civilian. About 3/4 through the book, Wright explains how the full-time Marines were getting increasingly irritated with a reserve unit traveling with them. The reserve unit was mostly made up people who in their civilians lives were law enforcement, “from LAPD cops to DEA agents to air marshalls,” and were acting like idiot renegades. Wright quotes a gunnery sargeant who traveled with the reserve unit:
“Some of the cops in Delta started doing this cowboy stuff. They put cattle horns on their Humvees. They’d roll into these hamlets, doing shows of force—kicking down doors, doing sweeps—just for the fuck of it. There was this little clique of them. Their ringleader was this beat cop…He’s like five feet tall, talks like Joe Friday and everybody calls him ‘Napoleon.’”
The unit ends up firebombing a village of Iraqis who’d been helping the Marines with intelligence about insurgents and Iraqi troops. Yes, it’s just an anecdote. But it’s a telling one. It suggests that to say some of our domestic police units are getting increasing militaristic probably does a disservice to the military.
Regular commenter “CTD” writes:
Last night I attended the monthly meeting of the Columbia Police Civilian Review Board. (The board itself is in its infancy, just having started up in January. The cops fought it’s formation every step of the way, of course.) The meeting had to be moved to the city council chamber because so many people showed up. Even then, it was standing room only. Not a single citizen who spoke attempted to defend the police. Not one. Several told similar stories about being victimized in raids, or having dogs killed. The local Libertarian Party chapter president spoke and quoted from Overkill, FYI. They quality of the citizen comments was surprisingly good, overall. Nobody made any point you haven’t a million times, but it was heartening to see so many agreeing that these paramilitary tactics are far too dangerous to be used for non-violent suspects. Thanks so much for getting the word out on this, we really appreciate it.
This was really my fondest hope for Overkill—that when one of these raids happens, citizens and policymakers would consult the paper. The idea for the SWAT transparency bill in Maryland came from Overkill. Maybe this episode will spur Missouri legislators to pass something similar.
Yesterday, I sat down for an IM interview with Vice magazine. The topic was police militarization, SWAT teams, and the Columbia, Missouri drug raid that become a YouTube sensation last week. I’ve been a huge fan of Vice for years, so it was kind of a thrill to chat with them.
Read the interview here.
Columbia, Missouri Police Chief Ken Burton is apparently frustrated. At another press conference yesterday, a reporter asked the chief what he has learned from the international attention generated by the YouTube video of his department’s SWAT team conducting a drug raid last February.
His reply: “I hate the Internet.”
I’ll bet he does. For two-and-a-half months, Burton and his department were quiet about the raid. That’s likely because, as I wrote yesterday, the raid was really no different from the tens of thousands of similar raids conducted every year, and that are probably conducted by his own department a couple of times per week. Within days of the video hitting the web, Burton was forced to hold several press conferences, and has now laid out several reforms to the way SWAT raids will be conducted in Columbia in the future. I suppose it’s possible those reforms were brewing all along, and the timing of him announcing them after the video went viral was mere coincidence. It seems at least plausible, though, that the dread “Internet” sparked some actual policy changes, here.
Unfortunately the changes—while small steps in the right direction—still miss the point. Burton says his department will no longer conduct SWAT raids at night. They won’t conduct raids in homes where children are present. Suspects will be under constant surveillance until the raid is carried out. And raids will be conducted within a shorter period of time from when police get the initial tip about a suspected drug dealer. But the Columbia Police Department will still conduct volatile, violent, highly aggressive forced-entry raids on people suspected of consensual, nonviolent drug crimes. That is what’s wrong with the YouTube video. Changing the time of day of the raid doesn’t change the wildly disproportionate use of force.
Burton and his department have also criticized web commentary on the video, citing both death threats aimed at members of the SWAT team and an abundance of what Burton calls “misinformation” about the raid.
He’s right. I saw both. In particular, the description that accompanied the YouTube video (which today topped 1 million views) described the pit bull the police killed as crated when it was shot. It wasn’t. (I should disclose that I passed on this bit of incorrect information to several people while discussing the raid before discovering it was incorrect, though I didn’t put it in print). And death threats, even from keyboard commandos posting on Internet discussion boards, are inexcusable.
That said, Burton is deflecting. When the video first went viral, his department’s spokesperson acknowledged that the police didn’t know a seven-year-old boy was in the home, but explained that the department has to carry out drug raids quickly before dealers can move their supply. That was, as Burton would put it, “misinformation.” You might even call it a lie. At the very least, it was another example of a police spokesperson reflexively defending the department before knowing all the facts. Eight days passed between the time the police were tipped off to the alleged marijuana stash and the time they conducted the raid.
As I reported yesterday, according to Brittany Montgomery, the mother and wife in the home at the time of the raid, the police initially gave the family a copy of the video in which the audio and portions of incriminating video had been removed. That sounds like “misinformation,” too. Montgomery also wrote that when her neighbors inquired with the department about the raid, they were initially told it was a drill, and that no shots were fired. That too was “misinformation.” (The department didn’t return my call, so I haven’t been able to get their response to these two allegations.)
“Misinformation” coming from police department officials acting in their official capacity is a hell of a lot more troubling than misinformation disseminated on Internet discussion boards and in blog comment threads.
As for the death threats, yes, they’re an unfortunately ugly part of often-anonymous Internet discourse. But Burton’s men were just captured on video firing off seven rounds into a home just seconds after they’d broken into it. This, despite the fact that there was nothing in the home that posed a lethal threat to them. (Yes, some pit bulls can be dangerous, but not to an armed SWAT team bedecked in full body armor.) One of those rounds missed its intended target (the pit bull) and struck an unintended target (the Corgi). According to Montgomery, there are now bullet holes in the walls of the house. There were other people in that house who weren’t suspects, people the cops weren’t aware of before they started firing their guns, including a child. That seems like a pretty reckless disregard for human life.
But Burton would have us believe that the real outrage here is the faux “if they try to come to my house and do that, I’ll kill them” Internet bravado that came in response to the video, not the very real violence actually depicted in it.
My crime column this week is on the Columbia, Missouri, SWAT raid.
Takeaway:
It’s heartening that nearly a million people have now seen the Columbia video. But it needs some context. The officers in that video aren’t rogue cops. They’re no different than other SWAT teams across the country. The raid itself is no different from the tens of thousands of drug raids carried out each year in the U.S. If the video is going to effect any change, the Internet anger directed at the Columbia Police Department needs to be redirected to America’s drug policy in general. Calling for the heads of the Columbia SWAT team isn’t going to stop these raids. Calling for the heads of the politicians who defend these tactics and promote a “war on drugs” that’s become all too literal—that just might.
| The Colbert Report | Mon – Thurs 11:30pm / 10:30c | |||
| Gary Johnson | ||||
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I’ll be talking about police militarization tomorrow night at the University of Maryland. My co-panelist will be Berwyn Heights, Maryland Mayor Cheye Calvo.
The chat will be from 7-9 pm in the Jiminez Room of the Stamp Student Union. It’s open to the public.
The short interview I did with Hizzoner for Reason is now online. He’s of the few politicians who doesn’t fill me with contempt, mostly because he’s interesting.
My favorite part: He’s a politician who actually has a corporate sponsor. And it’s a booze company!
It’s a bit odd that my lamenting Elena Kagan’s positions on executive power, civil liberties, and the rights of the accused would be classified as part of the “conservative case” against her nomination. These are positions where I’d argue she’s too conservative.
Then again, the left has pretty much dropped the ball on this stuff, too. And President Obama nominating Elena Kagan to the Supreme Court is a fine example.
This weekend I took a defensive handgun course at the FPF training range in Culpeper, Virginia. The instructor John Murphy and I share a mutual friend. John is also a libertarian (at least I’m pretty sure he is).
I’m a gun novice, to say the least. But John’s great at bringing along beginners while challenging more experienced shooters in the same course. In a single weekend I went from having never shot a handgun (perhaps when I was very small, I don’t remember) to feeling quite comfortable around one. And it turns out I’m not a half-bad shot. I learned a lot. I also had a lot of fun. Shooting stuff is cathartic.
I’m now qualified to apply for a concealed carry permit in Virginia. And in Tennessee after I move. So I guess the next step is to purchase a handgun.
But I wanted to give John some advertising to Agitator readers, who I’d imagine are more likely to take advantage of his class than your average bear. If you’re in or anywhere near the mid-Atlantic area, consider giving his course a shot (pun intended!). You don’t need to already own a gun. He’ll supply you with one.
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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