Here We Go Again

by: William Rivers Pitt, t r u t h o u t | Op-Ed

Here We Go Again
Elena Kagan. (Image: Jared Rodriguez / t r u t h o u t; Adapted: Harvard Law Record, Patrick Hoesly)

I'm beginning to get the sense that, had President Obama chosen a different course in life and decided to be a boxer, he would have fought in the style of James Braddock, whose concept of defense was to lead with his chin and get pounded on until the other guy wore himself out. After absorbing a year-long beating during the eventually-successful health care fight, after taking all sorts of absurd punishment during the Sotomayor nomination fight, after approving more offshore oil drilling approximately 17 seconds before the Deepwater Horizon exploded and sank in the Gulf, Obama is once again sticking his chin out with the nomination of Elena Kagan to replace Justice Stevens on the Supreme Court.

Kagan is hardly a radical pick, despite what we will almost certainly be hearing from the usual suspects on the right. She is the second woman Obama has nominated to the high court, a fact that will please many and disturb a few. She has been a trailblazer throughout her career, becoming the first woman to serve both as solicitor general and dean of Harvard Law School. She clerked for Justice Thurgood Marshall in her youth, a fact the right will almost certainly be used to tag her as being too liberal for the court. 

But Kagan also seems to have gone out of her way to avoid getting pinned down on many of the signal issues of the day. She is, in fact, something of a mystery. The New York Times on Monday described her this way:

She was a creature of Manhattan's liberal, intellectual Upper West Side - a smart, witty girl who was bold enough at 13 to challenge her family's rabbi over her bat mitzvah, cocky (or perhaps prescient) enough at 17 to pose for her high school yearbook in a judge's robe with a gavel and a quotation from Felix Frankfurter, the Supreme Court justice, underneath.

She was the razor-sharp newspaper editor and history major at Princeton who examined American socialism, and the Supreme Court clerk for a legal giant, Thurgood Marshall, who nicknamed her "Shorty." She was the reformed teenage smoker who confessed to the occasional cigar as she fought Big Tobacco for the Clinton administration, and the literature lover who reread Jane Austen's "Pride and Prejudice" every year.

She was the opera-loving, poker-playing, glass-ceiling-shattering first woman to be dean of Harvard Law School, where she reached out to conservatives (she once held a dinner to honor Supreme Court Justice Antonin Scalia) and healed bitter rifts on the faculty with gestures as simple as offering professors free lunch, just to get them talking.

Elena Kagan has been all of these things, charting a careful and, some might say, calculated path - never revealing too much of herself, never going too far out on a political limb - that has led her to the spot she occupies today: the first female solicitor general of the United States, who won confirmation with the support of some important Republicans, and now, at 50, President Obama's nominee for the United States Supreme Court. 

The lack of hard data on where Kagan stands on any number of judicial questions has been by design. In a February 2009, questionnaire prepared by the Judicial Committee during the nomination process for her position as solicitor general, Kagan was asked where she stands on the constitutionality of the death penalty. She replied:

Like other nominees to the Solicitor General position, I have refrained from providing my personal opinions (except where I previously have disclosed them), both because these opinions will play no part in my official decisions and because such statements of opinion might be used to undermine the interests of the United States in litigation. But I can say that nothing about my personal views regarding the death penalty (relating either to policy or law) would make it difficult for me to carry out the Solicitor General's responsibilities in this area.

Kagan's views on a number of hot-button issues are not hard to discern, however. She is a capital-D Democrat and squarely on the side of choice. She could become the most adamantly pro-gay rights justice in history if she wins the seat; while dean of the Harvard Law School, she barred military recruiters from operating on campus because of the anti-gay discrimination at the core of "Don't Ask, Don't Tell." This "transcript" of Kagan debating with Justices Stevens and Kennedy on the power and rights of corporations as pertaining to the controversial "Citizens United" case would seem to make it evident that she stands firmly with the left on the dangers represented by that decision.

Of course, the same people on the right who flipped out over the nomination of a Hispanic woman (which was, despite protests to the contrary, the real reason they detested the Sotomayor pick) are going to flip out again over the nomination of a Jewish woman.  Obama could nominate a lily-white Protestant woman; a black Baptist woman; or a tall, blue woman straight out of the cast of "Avatar," and the same people would grind their teeth no matter what, because of the "woman" part of the equation. They can deny it from the rooftops, but rampant misogyny is still the watchword in those particular circles, and that's just how it is.

Beyond those people, who would lose it even if Obama nominated Jesus of Nazareth to replace Stevens (simply because Obama was the one who nominated Him), you'd think it would be difficult to gin up a significant amount of angst and outrage over such a deliberately bland nominee, but that in itself is what might lead to trouble. Opponents of the Kagan nomination are going to point to the dearth of scholarly works from Kagan that might tend to illustrate her views, and they will also point to the fact that she has never served on the bench in any capacity beyond clerking. This absence of clarity will make her performance before the Senate Judiciary Committee critical to her chances of navigating the nomination process.

But - and this is a big, fat, hairy "But" - Kagan's position on the unitary power of the executive branch is where the trouble is going to come from, particularly on the left. Glenn Greenwald of Salon went into deep detail about Kagan's unacceptability as a nominee due to this specific issue:

I believe Kagan's absolute silence over the past decade on the most intense Constitutional controversies speaks very poorly of her. Many progressives argued (and I certainly agree) that the Bush/Cheney governing template was not merely wrong, but a grave threat to our political system and the rule of law. It's not hyperbole to say that it spawned a profound Constitutional crisis.

Recognizing the severity of this radicalism, numerous legal academicians used their platforms - and created new ones - to protest vocally and relentlessly. Former OLC official and Georgetown Law Professor Marty Lederman blogged on a virtually daily basis about the extremism and lawlessness of Bush's policies. Former Acting OLC Chief and Indiana University Law Professor Dawn Johnsen wrote article after article decrying the lawlessness and demanding greater public outrage. Georgetown Law Professor Neal Katyal - Kagan's not-at-all-progressive Deputy Solicitor General - was so appalled by Bush/Cheney extremism that he spent a huge number of hours working pro bono representing Osama bin Laden's driver all the way to the U.S. Supreme Court, where he succeeded in having Bush's military commissions declared illegal and the Geneva Conventions held applicable to all detainees - in a decision written by Justice Stevens (and, like Johnsen and Lederman, Katyal has a long record of written analysis on a whole litany of key legal controversies, including vehement opposition to many aspects of the Bush/Cheney assault).

Where was Elena Kagan during all of this? Why is it seemingly impossible to find even a single utterance from her during the last decade regarding the radical theories of executive power the Bush administration invoked to commit grave crimes and other abuses? It's possible that she said something at some point, but many hours of research (and public inquiries) have revealed nothing - other than when she endorsed the core Bush template during her Solicitor General confirmation hearing.  As Adam Liptak put it in The New York Times when she was nominated last year for Solicitor General: "she has provided few clues about where she stands on the great legal issues of the day, notably the Bush administration's broad assertions of unilateral executive power in areas like detention, surveillance, interrogation and rendition." The Boston Globe similarly pointed out that she "has had little to say about the legal and political issues related to presidential power that have emerged as a result of Bush's efforts to combat terrorism."

Few issues raise more consternation and rage on the left than the constitutional crisis created by the deranged activities of the Bush administration. This isn't just a problem for the far reaches of American liberalism, but an across-the-board complaint from a majority of the citizenry. Liberals will point to this in disgust and accuse Obama of moving the Supreme Court even further to the right, and will likely serve to further erode the Democratic base's support for his administration. If she does indeed prove to be a proponent of unfettered presidential power, the unitary executive crisis unleashed by Bush will continue unabated.

Again, a great deal of this will come out in the wash when the confirmation hearings get underway, and her performance and statements during those hearings will play a supreme role in determining where opinions of her will come down. For the time being, however, the nomination of Kagan appears to be another example of the president leading with his chin. This time, however, the lion's share of punches are going to come from the left side of the ring.

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William Rivers Pitt is a Truthout editor and columnist.  He is also a New York Times and internationally bestselling author of two books: "War on Iraq: What Team Bush Doesn't Want You to Know" and "The Greatest Sedition Is Silence." His newest book, "House of Ill Repute: Reflections on War, Lies, and America's Ravaged Reputation," is now available from PoliPointPress.


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Obama is not leading with

Obama is not leading with his chin -- he's doing something to progressives in the butt.

The idea that Obama is some kind of bumbler is misplaced. He (and Rahm and Axlerod) know exactly what they are up to and it's name is "neo-liberalism"

Obama is firmly in the camp of those who believe (as Pope Benedict critically put it) that a "market mechanism" is the solution to all social problems. Translation: there was no "bumbling" into Afghanist and no "ooops" on health care.

Harvard is the bastion of US establishment neo liberalism (and its geopolitical correlatives). Gee... and where does Kagan emanate from?

Jane Austen has little to do with anything.



"Harvard is the bastion of

"Harvard is the bastion of US establishment neo liberalism (and its geopolitical correlatives). Gee... and where does Kagan emanate from?"

Chip is right. Harvard and Yale are the epicenter of the neoliberals/right. With Kagan we now have 9 out of 9 Supreme Court justices from Harvard or Yale. All presidential nominees from both parties for the past 20 years have been from Harvard or Yale. Very strange.



Whole lot of politics in

Whole lot of politics in this one right folks?
To pretend that there isn't politics driving most things the the USSC is to misunderstand how our republic rewards money and power. (in that order) We need to re-evaluate the entire judicial branch, which won't happen with the sullen, deeply entrenched pomp of royalty effusing from the hallowed halls of Harvard. It's as nasty as saying let the Church decide. I say we Democratically elect our next judge on the high court, and get to work on impeaching Obummer.



Didn't bloated , but

Didn't bloated , but heterosexual, economic scoundrel Lawrence Summers gravitate from his inept questionable leadership at Harvard, into the Rubin-esque Obummer administration? We need someone else, not someone who dares suggest torture is OK.



Who the he|| cares if she's

Who the he|| cares if she's a woman? Or what her faith is? Are these really important?
Well yes, this is the issue that Obummer wants the HuffPo liberals to focus most on, not the idea of ramming a screwdriver through someone's hand in order to get them "to talk.", or assassinating them if they are "deemed some kid of threat".
Some members of the court are weaving theocratic perversions, where a combination of rote objectivity pushes the country along to an ever increasing loss of liberty. Nothing is more frightening then the blind insolence Scalia seems to project where he waves the constitution from his perch. Really, really terrifying. It's the same cerebral "keep it simple" form of human indifference that an Air Force pilot operates under - to protect himself when he knows for sure his rockets and bombs are going to kill women and children.



The significance of the

The significance of the election and tenure of
Obama has many dimensions among them are:
1) It signaled definitively the dominance of
21st century media in campaigning.
That is, it placed maximum distance between
the candidate and the people.
In spite of social media hype,
internet does NOT equate to intimacy.
2) It made clear, open, and definite that
the Democratic Party is not in any way progressive and will not in any way be progressive.
3) It marks the point at which the
orwellian turn was accomplished once and for
all in America. Contrary to all punditry
and all ostensible facts and all received
wisdom, the Democratic Party is not
an alternative to the Republican Party,
not an adversary of the Republican Party,
but rather a collaborator.



This sort of article writing

This sort of article writing really triggers my "disgust response." So, according to Pitt, any argument the right would have against Kagan will always boil down to the fact that she's a woman. But, any issue the left has with her nomination is due to the fact that she isn't "left" enough? What utter mind drivel. I bet for people like Pitt, Kagen's nomination represents a real Sophie's choice of liberal ideologies. Thanks though, Mr. Pitt, for at least putting in the effort to negate any legitimate concern any conservative might have about Kagen's appointment. That should at least eliminate some of the discourse over this person. And I must say, what a clever way to make sure only the liberals get a voice in this nomination.



Ah, an otherwise boring

Ah, an otherwise boring piece of writing, except for this, which says it all, for if the Republicans like her, then this nomination has to be, without exception, still another of Obama's thrusting middle finger to the Left: "..who won confirmation with the support of some important Republicans, and now, at 50, President Obama's nominee for the United States Supreme Court." I wonder, which Republicans, Will? This woman's personality, the main subject of this piece, is irrelevant, but what is not so irrelevant is the way she said: I love the Federalist Society! This is another right wing Democrat -- like our President -- even whose mere face, the sight of it, these-days, makes me want to throw up.



Republicans make me puke.

Republicans make me puke. They never have an ounce of consistency. Why even argue against them. I agree, Republicans don't oppose her because she is a woman. They oppose her because she is not Republican, because Obama appointed her. Because they oppose everything and anything that Obama does or proposes.

Doesn't matter what others say, only their opinions are valid. Even if tehy are 180 degrees opposite of last weeks bilge out of their mouths. That Democrats, liberals, those on the left, have varied opinions. How exactly does this make Republican's unified voice on just about anything, better? It doesn't except by their twisted reasonings that twist about in all directions at once until they land on a particularly piece of nonsense that may sound nice to the poorly educated who follow their nonsense.

I tire of your bullcrap. You people make no sense and cheer on the degradation of this Republic. You'll destroy everything in your paths. You never believed in one thing progressive in the past 100 years. Safety rules, banning child labor, womens suffragettes, Civil Rights. You are continual frauds



Oh, gee "...after approving

Oh, gee

"...after approving more offshore oil drilling approximately 17 seconds before the Deepwater Horizon exploded and sank in the Gulf..."

Facts show otherwise.

Obama approved off shore drilling on March 31, 2010.

The Gulf oil rig exploded on April 21, 2010.



@18:58 The notion that

@18:58

The notion that Kagan could be unattractive to the Left and Right is realistic. That the Right is looking for a consumer-ized society based on reality TV show principles and rabid individualism need not be further commented on here. That anyone today could not blush in shame by calling themselves "conservative" is truly amazing and points to an systemic problem in our culture: that through Republican rule and successful passing of CONSERVATIVE LEGISLATION AND POLCY MAKING, we now have a vocal majority of downright idiots (from the Right, mostly) and various media networks owned and operated by Republican thugs who long ago discarded notions of fairness and instead instituted "winner take all" consciousness. So, please. Sir, go back home, look in a mirror, and reexamine your entire life. Try to find your soul while you're at it, if you can and revoke your devotion to a political philosophy of hate. Thanks.



What did we expect? The

What did we expect? The Supreme Court is The
Sanhedrin. The Talmud rules.
The Zionist Revolution, which moved from USSR to USA in 1991, is going according to plan. American capital and military is being used to depopulate the Muslim world, and in turn destroy the host nation(USA) from the inside.



And well it should be that

And well it should be that "the lion's share of punches are going to come from the left side of the ring" on the Kagan nomination. It has already come out that she is in favor of the unitary executive; the "War (OF!) Terrorism" fraud (and, therefore, endless war, human rights violations and war crimes, etc.); unlimited bombing(s) of, and extremely mass-murderous attacks against, civilians; extrajudicial assassinations; extraordinary rendition(s); indefinite detention(s) without trial; quasi-judicial "military commissions"; and torture...



...All of that should stop

...All of that should stop her nomination in its tracks right there; but, of course, the right side of the ring is also in favor of that insanity, and so is "Osama bin Obama", second imperial "emperor" (and/or dictator)---after "King George W. Bush the IVth"---of the "United States of America" (aka, "King 'George' the Vth"), leader of "al-CIA-duh", I mean the CIA, et al., and Commander-in-Chief of the U.S. "centurions" and/or "stormtroopers", I mean the U.S. military, the armed forces, the Pentagon, the "Department of (War)", and/or the "Ministry of 'Peace'" (the latter as Orwell called it).

Those who have said that others who are given greater power are loathe to give it up were certainly right. The Bush administration set up what in reality is the "unitary dictatorship", or "dictatorial executive", albeit with changing dictators (and/or emperors) like ancient, imperial Rome had, with greater power than the other two "check and balance" branches of the U.S. government which were set up to prevent the very thing that is happening. And now the Obama administration has proven not only that it will not give up those completely unconstitutional powers, but that they are also glorying in and expanding them, doing away with more and more of the Constitution and Bill of Rights, and the protections of human rights and civil liberties in the U.S. and the world as a result. Naturally, therefore, "Absolute power corrupts absolutely"...



...Needless to say, power

...Needless to say, power goes to peoples' heads, particularly when that power is so great that it overpowers all True Reason. The Founders of the United States recognized that fact through the despotism, tyranny, oppression and repressiveness of King George the IIIrd and others. Thus they tried their darnedest to prevent such a repeat of history from occurring in the United States. But the ultimate powers-that-be, the international shadow government behind the scenes, the multinational bankers and the most power evil families in the world, had their designs on destroying that True Liberty from its very beginning; and, therefore, from that very inception they went about destroying it. Now they are putting the finishing touches on, and succeeding in, completely destroying the last bastion of liberty and freedom, the United States of America...



..."ObamaCON", aka

..."ObamaCON", aka "O-bomb-all-people-who-resist-into-the-Stone-Age", by way of his appointments, pro-unitary-executive-dictatorship Supreme Court nominees, his corporate-totalitarian-communist-fascist, "above-the-law", despotic and tyrannical "czars", the completely unconstitutional Bills he has signed into "law", and his "Executive Orders", "Presidential Directives" and "signing statements", etc., is a tool of the final destruction of that freedom and liberty, the entire country itself, and for ushering in the "New World Order (NWO)", aka world government, which he, the Bushs' and others have admitted in speeches time and time again (and yet most so-called good "Americans" and "patriots" continue to deny it), that will bring about the ultimate, and total, demise of the U.S. as we have known it, and enslave it and the entire world...



...Wherefore, why do I have

...Wherefore, why do I have to keep saying that all or most of us MUST stand up against all of this madness? After all, that should be obvious. But those "powers-that-be" have so effectively dumbed-down, poisoned, indoctrinated, conditioned, programmed, brainwashed, and/or scared the masses into silence, that The People, the ones' who are, with God's help, the last and final bastion against this ultimate tyranny and despotism, are letting this ultimate evil succeed...



...Thus, to put the brakes

...Thus, to put the brakes on this capitulation to the final evil, don't let the True Patriots (and those who are at least trying to be True Patriots, although misguidedly in some if not many respects) be decried, denounced, demonized, "discredited" and/or silenced, etc.; but stand by them, support them, join them, carry out your own True Patriotism, and/or do whatever it takes to curtail the mass-insanity that is very fast taking over this country and world, and stop the "NWO" from destroying all True Freedom and Liberty, nationwide and worldwide, and from enslaving and destroying all or most of us. The buck stops here, AND NOW, or we're all screwed.



If I were a president

If I were a president nominating a Supreme Court Justice I would be sure it was someone who would not vote criminal charges against me or vote to deny me my unitary president powers. Voila' Kagan.



"President Obama’s Supreme

"President Obama’s Supreme Court nominee Elena Kagan is perfect in every way – perfect that is if you think the role of the highest judicial body in the United States is to ban free speech, indefinitely detain Americans without trial, resurrect command and control socialism, while urinating on everything the Constitution stands for."

Kagan: Disappear Free Speech If The Government Deems It Offensive

http://www.prisonplanet.com/kagan-disappear-free-speech-if-the-government-deems-it-offensive.html



Obama's Supreme Court

Obama's Supreme Court nominee Elena Kagan is involved in the cover-up of 9/11

www.infowars.com/kagan-involved-in-911-cover-up/



"In addition to the attacks

"In addition to the attacks on free speech, detainee rights and the close connections to Goldman Sachs, another noteworthy black mark on the record of Elena Kagan, the president’s nominee to the Supreme Court, is that she played a significant part in killing off the efforts of 9/11 victims’ families to bring lawsuits against members of the Saudi Royal family for financial links to the conspiracy."

(See immediately-previous post and link.)



And for any idiots who don't

And for any idiots who don't like the word "conspiracy" in the previous quote, even if
'only" Osama bin Laden and his "al-CIA-duh"/al Q'aeda comrades were involved in 9/11, it was a conspiracy; so, if you stupidly think huge conspiracies don't exist or happen, please wake up, stop thinking like that, and face that for such a huge endeavor as 9/11 to be successfully carried out as it was against the largest, most sophisticated national defense apparatus in existence in the entire world, the U.S. government's national security apparatus, there had to have been and was a huge conspiracy to carry it out.



@ 01:02 Fallacy: a

@ 01:02

Fallacy: a conspiracy doesn't have to be "huge" to have "huge" results. The whole idea of computer hacking is to get big results from "exploits" that require tiny numbers of people and minuscule resources.

If the Pentagon had wanted to pull off a 9/11, it would have taken thirty years, cost untold billions of dollars (much of it missing and unaccounted for), and required hundreds of thousands of participants.

The 9/11 conspiracy as it actually unfolded involved no more than a dozen people and cost less than a year's lunch bill for one defense industry lobbyist.

It wasn't huge. It was a hack.



One might argue, Will, that

One might argue, Will, that someone to which both sides might object is the perfect nominee. Either way, the conservatives will object from their almost instinctive reactionary stance, based upon nothing but their own delusional perspective. I don't think it has anything in particular with her being a woman. I'd say it boils down to "Oh, she's not crazy or narrow-minded enough. Obviously the wrong choice."

From the left the arguments might be more nuanced, but it sounds to me that they come down to "she's not transparent enough." By design, apparently. I'm not sure an aptitude for discretion is a BAD thing.



Seriously? Anyone who was

Seriously? Anyone who was silent through the Bush regime doesn't get to launch himself into the Unitary Executive debate as if the Obama administration invented it. While it's quite reasonable to complain that he is continuing some of the last administration's most egregious policies, it's just stupid to act as though this is some sort of horrendous about-face. It's just more of the same.

Oh, yeah. "Obama's a socialist? Yeah, the same way Carl Sagan was a space shuttle."



At first I agreed with you,

At first I agreed with you, "Justa", until I kept reading what you went on to say. If you believe that, then you know next to nothing about the HUGE amount of evidence that 9/11 HAD TO HAVE BEEN an inside job; with, at minimum, government knowledge and looking the other way for almost the entire U.S. national defense apparatus to "fail" on that day. It was NOT simply "a (computer) hack". It WAS MUCH bigger than that, and it had to have been much bigger than that, and not that simple, for it to have been successfully carried out as it was. And it did NOT simply involve 19 people, most of whom it has been proven are still alive and had nothing to do with it. Look into it instead of blindly believing the "official fairytale" which is chock full of holes and deceptions...



...Otherwise, you are right

...Otherwise, you are right that not all conspiracies "have to be 'huge' to have 'huge' results. But 9/11 WAS huge. Even former 9/11 Commission members have publicly stated that they were lied to and deceived; and some of them, as well as many other professionals who have investigated the matter deeply have said that there is much more to it and that the government was involved. Just the fact that it has been proven that Saudi nationals including the royal family financed 9/11, which people like Kagan helped keep victims families from suing them for, shows that there's a lot more to the conspiracy than the government has told us, and they are obviously helping to cover up the truth about what really happened and who was really responsible.



Thanks, Mr Pitt for pulling

Thanks, Mr Pitt for pulling together a number of other people's thoughts about Kagan. Her defense of Monsanto's right to spread GE crops without proper government testing of the effects on nearby non-GE crops, is another piece of the puzzle of where she might stand on progressive issues...

I finally realized that the reason I'm constantly disappointed by Democrats is because they are really what used to be moderate Republicans who are no longer welcome in the GOP. So, we really do have two right-of-center parties--the unhinged and the moderates--and no liberal party at all.



Kagan likely a Mossad

Kagan likely a Mossad stealth candidate. No doubt if she is not confirmed, President Emanuel will have another shark's tooth ready to pop up in her place.

Regardless of her origins as a selection, to suggest that any candidate for SCOTUS is not part of the Establishment and won't support the erosion of the Constitution as we have been seeing for some 50 years, is laughable. The agenda is to chip away and chip away until the U.S.A has succumbed to the globalists agenda, as if it hasn't already. As James Paul Warburg (look him up) said: "We shall have World Government, whether or not we like it. The only question is whether World Government will be achieved by conquest or consent." Which do you think it is?



Dear S. Wolf Britain: Did

Dear S. Wolf Britain: Did you notice what Justa said at the end of the Comment? that 911 "as it actually unfolded involved no more than a dozen people and cost less than a year's lunch bill for one defense industry lobbyist." One must pause and think . . . one defense industry lobbyist, and how many defense industry lobbyists are there, all told? The heedless, feckless, dispassionate Bush & Cheney probably didn't know the details - or realize it would be much, much worse than the '93 WTC attack, but with their PNAC minutes in hand, and Cheney's Energy Task Force urgings ongoing, they sat back, waiting to take advantage of whatever was coming. The only reason Rice said the intel was "not actionable" is because her boss wanted to see what he could get out of the disaster and forbid her to act.