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Supreme Court Nominee Could Coronate Obama

Bruce Fein
Campaign For Liberty
June 23, 2010

Depend upon it! If confirmed by the United States Senate, Supreme Court nominee Elena Kagan will crown President Obama with “imperial” constitutional powers. Congress and Federal Courts will wither as checks against his presidential usurpations or abuses whenever war or other national security claims are bugled over Iran, North Korea, Yemen, international terrorism, economic adversity, or otherwise. In these matters, Kagan will prove the flip side of retiring Justice John Paul Stevens, whose vote and voice have, for decades, arrested executive branch lawlessness or encroachments on the co-equal branches of government. Stevens’ vote was decisive in a pair of recent cases invalidating both military commissions for the trial of alleged war crimes and the suspension of the Great Writ of habeas corpus for Guantanamo Bay detainees.

Justice Robert Jackson lectured in Youngstown Sheet & Tube Co. v. Sawyer during the Korean War: “With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations.” In other words, the history of liberty is largely the history of legislative or judicial checks on assertions of executive authority. These signature earmarks of a Republic may be doomed in light of America’s seemingly prevailing psychology of Empire. But if so, the Supreme Court should be the last to surrender, which is why Kagan’s nomination must be defeated.

Kagan is a creature of the executive branch. She served as a senior legal advisor to President William Jefferson Clinton, and was appointed Solicitor General of the United States by President Obama. The latter has been styled The Tenth Justice because the Office of Solicitor General echoes the President’s constitutional views before the Supreme Court and commands substantial deference by its nine Justices. Kagan also eagerly sought appointment by President Clinton as Assistant Attorney General for the Office of Legal Counsel (OLC). Its customary mission is to manufacture theories of presidential omnipotence, which inexorably encourages intellectual scorn for Congress. I served in OLC as special assistant to the Assistant Attorney General in my salad days so I know its predisposition to exalt presidential power.

Kagan voiced no protest over President Clinton’s initiation of wars in Bosnia and Serbia without statutory authorization from Congress. She expressed no public objection to President Clinton’s claim of constitutional immunity from Paula Jones’ sexual harassment suit. The Supreme Court, speaking unanimously through Justice Stevens in Clinton v. Jones, repudiated the argument. Kagan endorsed line-item veto power for the President that was held unconstitutional in another opinion authored by Justice Stevens in Clinton v. New York. As Solicitor General, Kagan has defended President Obama’s assertion of a “state secrets” privilege to shield government officials guilty of constitutional wrongdoing from damage judgments. In oral argument before the Supreme Court, she has maintained that lawyers who defend organizations accused of complicity in international terrorism can be prosecuted for material assistance, first cousin to Russian Prime Minister Vladimir Putin’s persecution of defense counsel for Mikhail Kodorkovsky. Kagan endorses “presidential power” to imprison American citizens for life as enemy combatants without accusation or trial; and, to employ military commissions denuded of time-honored procedural safeguards to try non-citizens for crimes routinely prosecuted successfully in civilian courts, for example, material assistance to a listed foreign terrorist organization. She has voiced no disagreement with “presidential power” to prohibit current or former White House officials from even appearing before Congress in response to a congressional subpoena; or, to prevent non-dangerous detainees held illegally for years at Guantanamo Bay from entry into the United States.

Most alarming, Kagan has voiced no qualms against President Obama’s claim of unilateral authority to kill American citizens abroad if he believes they pose an imminent danger to the national security of the United States anywhere on the planet. Currently targeted for death is Anwar al-Awlaki. If the President errs, the homicide will be advertised as collateral damage in the perpetual global war against international terrorism. Better that the innocent be rubbed out by predator drones and that due process of law be lacerated than that the United States accept a one-millionth of one percent risk of a terrorist attempt launched from a desert cave thousands of miles away from American shores. But President Obama is an honorable man, and his Cabinet is all honorable men and women.

Supreme Court Justices generally shy from rebuking their presidential benefactor, especially over national security. President Franklin D. Roosevelt’s New Deal appointees upheld his odious racist concentration camps for Japanese Americans during World War II. Chief Justice Fred Vinson repaid President Harry Truman for his appointment by voting to sustain the President’s seizure of a private steel mill during the Korean War and a state secrets claim to cover-up military negligence. Chief Justice John Roberts and Associate Justice Samuel Alito, appointees of President George W. Bush, voted to uphold the suspension of habeas corpus in Boumediene v. Bush and the use of presidential military commissions for the trial of war crimes in Hamdan v. Rumsfeld. So, if President Obama initiated war in Iran over weapons of mass destruction without a directive from Congress, a Justice Kagan would probably invent a constitutional justification.

Preserving the rule of law and individual liberty from “presidential predation” is too important to roll the dice with this nominee and this President.

This ran on the Huffington Post

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