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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."
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URL to article: http://www.commondreams.org/newswire/2010/05/10-5
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
http://www.alternet.org/story/146794/obama%27s_supreme_court_nominee_elena_kagan_will_move_the_court_to_the_right?page=entire
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
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.
District No. 1, he wrote that "children of all races
benefit from integrated classrooms and playgrounds."
When Kagan was dean of
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
Salon.com, "if the first black president - of both the
Harvard Law Review and the
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
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
treasures."
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
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
of the National Lawyers Guild, and the
representative to the executive committee of the
American Association of Jurists.
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