Monday, May 10, 2010

CCR Executive Director Vincent Warren Critical of Elena Kagan's Nomination to the Supreme Court/Elena Kagan Will Move the Court to the Right

May 10, 2010
1:30 PM

CONTACT: Center for Constitutional Rights (CCR) [1]
Jen Nessel, 212.614.6449,;
David Lerner, Riptide Communications, 212.260.5000

CCR Executive Director Vincent Warren Critical of Elena Kagan’s Nomination to the Supreme Court

NEW YORK - May 10 - In response to President Barack Obama's nomination of Solicitor General Elena Kagan to the United States Supreme Court, Center for Constitutional Rights Executive Director Vincent Warren issued the following statement:

"When the president nominates a woman or man to sit for life on the highest court of the land, we must look seriously at the broadest and most long-term implications seating that person will have for our country. At the Center for Constitutional Rights, we have fought at the forefront to hold back presidential overreach and the dangerous growth of executive power, particularly as it concerns torture, detention, surveillance and racial profiling, areas where the government has flouted the law most blatantly over the last decade. I am sad to say that Solicitor General Elena Kagan's record indicates a troubling support for expanding presidential powers, something we must be vigilant about at this time. President Obama would appear to be seeking to appoint a Supreme Court Judge who will endorse his policies and appease conservatives. This is not the way to make a decision that will affect our nation for decades to come."


The Center for Constitutional Rights [1] is dedicated to advancing and protecting the rights guaranteed by the United States Constitution and the Universal Declaration of Human Rights. Founded in 1966 by attorneys who represented civil rights movements in the South, CCR is a non-profit legal and educational organization committed to the creative use of law as a positive force for social change.


Center for Constitutional Rights (CCR) Links: Homepage [1]Center for Constitutional Rights (Press Center) [2]Center for Constitutional Rights (Action Center) [3]


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Obama's Supreme Court Nominee Elena Kagan Will Move the Court to the Right


President Barack Obama has chosen

Elena Kagan to fill the vacancy left by Justice John

Paul Stevens' retirement. Sadly, Kagan cannot fill

Justice Stevens' mighty shoes.


AlterNet / By Marjorie Cohn


May 9, 2010


President Barack Obama has chosen Elena Kagan to fill

the vacancy left by Justice John Paul Stevens'

retirement. Sadly, Kagan cannot fill Justice Stevens'

mighty shoes.


As the Rehnquist court continued to eviscerate the

right of the people to be free from unreasonable

searches and seizures, Associate Justice John Paul

Stevens filed principled and courageous dissents. For

example, the majority held in the 1991 case of

California v. Acevedo that although the police cannot

search a closed container without a warrant, they can

wait until a person puts the container into a car and

then do a warrantless search because the container is

now mobile. In a ringing dissent that exemplified his

revulsion at executive overreaching, Justice Stevens

wrote that "decisions like the one the Court makes

today will support the conclusion that this Court has

become a loyal foot soldier in the Executive's fight

against crime."


The founders wrote checks and balances into the

Constitution so that no one branch would become too

powerful. But during his "war on terror," President

George W. Bush claimed nearly unbridled executive power

to hold non-citizens indefinitely without an

opportunity to challenge their detention and to deny

them due process. Three times, a closely divided

Supreme Court put on the brakes. Justice Stevens played

a critical role in each of those decisions. He wrote

the opinions in Rasul v. Bush and Hamdan v. Rumsfeld

and his fingerprints were all over Boumediene v. Bush.


Unfortunately, President Barack Obama has continued to

assert many of Bush's executive policies in his "war on

terror." Elena Kagan, Obama's choice to replace Justice

Stevens, has never been a judge. But she has been a

loyal foot soldier in Obama's fight against terrorism

and there is little reason to believe that she will not

continue to do so. During her confirmation hearing for

solicitor general, Kagan agreed with Senator Lindsey

Graham that the president can hold suspected terrorists

indefinitely during wartime, and the entire world is a

battlefield. While Bush was shredding the Constitution

with his unprecedented assertions of executive power,

law professors throughout the country voiced strong

objections. Kagan remained silent.


Justice Stevens ruled in favor of broad enforcement of

our civil rights laws. In his 2007 dissent in Parents

Involved in Community Schools v. Seattle School

District No. 1, he wrote that "children of all races

benefit from integrated classrooms and playgrounds."

When Kagan was dean of Harvard Law School, she hired 32

tenured and tenure-track academic faculty members. Only

seven were women and only one was a minority. "What a

twist of fate," wrote four minority law professors on, "if the first black president - of both the

Harvard Law Review and the United States of America -

seemed to be untroubled by a 21st Century Harvard

faculty that hired largely white men."


Obama had a golden opportunity to appoint a giant of a

justice who could take on the extreme right-wingers on

the Court who rule consistently against equality and

for corporate power. When he cast a vote against the

confirmation of John Roberts to be Chief Justice,

Senator Obama said, "he has far more often used his

formidable skills on behalf of the strong and in

opposition to the weak." Justice Stevens has done just

the opposite.


If he wanted to choose a non-judge, Obama could have

picked Harold Hongju Koh or Erwin Chemerinsky, both

brilliant and courageous legal scholars who champion

human rights and civil rights over corporate and

executive power. Unlike Kagan, whose 20 years as a law

professor produced a paucity of legal scholarship, Koh

and Chemerinsky both have a formidable body of work

that is widely cited by judges and scholars.


But Obama took the cautious route and nominated Kagan,

who has no record of judicial opinions and no

formidable legal writings. Since Kagan was handily

confirmed as solicitor general, Obama probably thinks

her confirmation will go smoothly. After the health

care debacle, however, he should know that the

right-wingers will not be appeased by this milquetoast

appointment, but will oppose whomever he nominates.


The Warren Court issued several landmark decisions. It

sought to remedy the inequality between the races and

between rich and poor, and to curb unchecked executive

power. Chief Justice Earl Warren wrote these words,

which would later become his epitaph: "Where there is

injustice, we should correct it. Where there is

poverty, we should eliminate it. Where there is

corruption, we should stamp it out. Where there is

violence, we should punish it. Where there is neglect,

we should provide care. Where there is war, we should

restore peace. And wherever corrections are achieved,

we should add them permanently to our storehouse of



Conservatives decry activist judges - primarily those

who act contrary to conservative politics. But the

Constitution is a short document and it is up to judges

to interpret it. Obama has defensively bought into the

right-wing rhetoric, saying recently that during the

1960's and 1970's, "liberals were guilty" of the

"error" of being activist judges. Rather than

celebrating the historic achievements of the Warren

Court - and of Justice Stevens - Obama is once again

cowering in the face of conservative opposition.


Obama should have done the right thing, the courageous

thing, and filled Justice Stevens' seat with someone

who can fill his shoes. His nomination of Elena Kagan

will move the delicately balanced court to the Right.

And that is not the right thing. Marjorie Cohn is a

professor at Thomas Jefferson School of Law, president

of the National Lawyers Guild, and the U.S.

representative to the executive committee of the

American Association of Jurists.



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