Home     Writers     Op/Ed     Book Reviews     News     Bookstore     Photoshops     Submit     Search     Contact Us     Advertise  
  You are here: 

Tue

11

May

2010

Can Kagan Fill Stevens’ Mighty Shoes?
Tuesday, 11 May 2010 05:28
by Marjorie Cohn

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, reportedly 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.

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 Salon.com, “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 has a golden opportunity to appoint a giant of a justice who can 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 wants to choose a non-judge, Obama could pick 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 it appears Obama will take the cautious route and nominate Kagan, who has no record of judicial opinions and no formidable legal writings. After the health care debacle, he should know that the right-wingers will not be appeased by this milk toast 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 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 Warren Court – and of Justice Stevens – Obama is once again cowering in the face of conservative opposition.

Obama should do the right thing, the courageous thing, and fill Justice Stevens’ seat with someone who can fill his shoes. If he nominates Elena Kagan, Obama will move the delicately balanced court to the Right. And that would be the wrong thing.

Marjorie Cohn is a professor at Thomas Jefferson School of Law and immediate past president of the National Lawyers Guild. She is the author of Cowboy Republic: Six Ways the Bush Gang Has Defied the Law. See www.marjoriecohn.com.
More from this author:
Bush Plans War on Iran (4138 Hits)
by Marjorie Cohn The Sunday Times of London is reporting that the Pentagon has plans for three days of massive air strikes against 1,200...
Erwin Chemerinsky and the Post-9/11 Attack on Academic Freedom (5814 Hits)
by Marjorie Cohn One week after renowned legal scholar Erwin Chemerinsky was offered the position of dean of the new law school at the...
Pursue Diplomacy, Not War, With Iran (4748 Hits)
by Marjorie Cohn Iranian President Mahmoud Ahmadinejad’s visit to the United States has prompted an outcry, including protests and tabloid...
Cheney Sounds Out Jordan, Egypt on U.S. Bombing of Iran (5659 Hits)
by Marjorie Cohn My cousin Larry Russell, a travel writer, spent three weeks (May 11 through May 31 of 2007) in Jordan as a guest of the...
Torture Endorsed, Torture Denied (7335 Hits)
by Marjorie Cohn Originally published on the Jurist The April 2004 publication of grotesque photographs of naked Iraqis piled on top of ...
Related Articles:
AN INCONVENIENT MIGHTY WIND: Al Gore's Description Of His Conversation With Harry Shearer (4512 Hits)
by Linda Milazzo On Tuesday night last week, attendees at the Wilshire Theater in Beverly Hills witnessed an invigorating match of wit...
Enough Heroes to Fill a Book (Book Review by David Swanson) (7029 Hits)
by David Swanson "A very few serve the state with their consciences, and so necessarily resist it." -Henry David Thoreau ...
From Aggression to Victimhood: David Aaronovitch (or How the Mighty Fall) (3964 Hits)
by Mary Rizzo Like anybody, we love to watch false idols crumble, and when rabid Zionist and war advocate Aaronovitch hit the floor with a crash,...
A Note on the Mighty Wurlitzer (2272 Hits)
by Zahir Ebrahim What is the 'Mighty Wurlitzer'? It used to be the honorific of Frank Wisner, the first chief of political warfare for the...
Supreme Court Pick: Kagan "Loves" the Federalist Society (3214 Hits)
by Francis A. Boyle Ph.D. Solicitor General Elena Kagan is widely reported to be a leading contender for the Supreme Court position being vacated...


Add this page to your favorite Social Bookmarking websites
Trackback(0)
Comments (1)add comment

republicanblue said:

0
Well What can I say
Hmmm, and if she turns out to be an activist, NOW what maybe we need term limits?

Search "Term Limits for Supreme Court Justices Wendy phillips"
 
May 11, 2010
Votes: +0

Write comment
smaller | bigger

busy
 

adsense

Top