June 07, 2010

Supreme Court Nominee Elena Kagan - Interesting Political Times

A feature-length magazine article

by Diane V. McLoughlin

June, 2010: 

Seasoned politico and writer Pat Buchanan has been taken to task for pointing out that, should Elena
Kagan be confirmed, the Supreme Court would consist of three Jews, six Catholics, and not a
Protestant in the lot of them. [1]

Sounds a bit like an opener to a bad joke, doesn't it? 'So, three Jews, six Catholics and zero
Protestants walk into a bar...' blah, blah, blah and punch-line. For the record I'm an agnostic,
cognizant and supremely tolerant of the fact that most other people are not.

Anyway, I infer from Buchanan's parsing of the numbers that he believes that religion influences the
ways in which a Supreme Court justice might weigh-in on the law, and, by extension, that religious
belief might have a profound effect on the ways in which a Supreme Court justice might leave their
imprint on civil liberties as well as the social fabric of the nation. After all, that is what the justices
are there for - to interpret how legal cases ought to be settled based on the guiding principles of the

I really don't have a problem with Mr. Buchanan's reasoning, but Huffington Post's Keli Goff goes
way out there to smear Buchanan's thoughts as 'dangerous' antisemitism. [2]

Why is it racist to suggest that color, class, social groupings and/or religion might shape one's views
to varying degrees, and that one would hope to have reasonable proportional representation - or,
inversely - not an unreasonably disproportionate over-representation of any identifiable group? Is it
really fair to say that efforts at inclusion are discriminatory?

Power of one group over other groups is sometimes abusive and tyrannical, such as the tyranny of
majority-rule. Sometimes tyranny might take the form of a small elite over the unwitting majority,

The Founders tried to take into account such threats to the liberty of the individual. They wanted to
maximally protect civil liberties for All. President Barack Obama's successful nomination of Ms.
Kagan would mean that thirty percent of the Supreme Court justices would be Jewish, versus less
than two percent of America's general population. As I say, Ms. Goff seems to feel it is racist even
to bring it up.

The above merely hints at the controversy swirling around this story.

Who is Elena Kagan? What are her qualifications?

For starters, Ms. Kagan does not have a legal record to review from time spent on the bench.
I repeat, because it is so stunning as to be disbelieved - Ms. Kagan has been nominated to serve as
one of only nine individuals who are to determine, judge and personally influence the highest laws
and their philosophical underpinnings, while never having been a judge - not for one day, anywhere,

Frankly, it boggles the mind. Out of a population of three-hundred and ten-million - how many
talented, brilliant, experienced judges might there be? From that pool, how many did U.S. President
Barack Obama find worthy of interest? Apparently, none.

This raises some rather obvious questions. Why Elena Kagan? Who brought her to Obama's
attention? What overriding considerations were given to nominating her? Why is an inexperienced
judge preferable to an experienced judge? What does it say about Elena Kagan that she would even
agree to be considered, given this lack of experience? What is hoped to be achieved by her
nomination? What are her goals in accepting the invitation to serve?

Elena Kagan held the prestigious post of Dean of Harvard Law School. But the accepted criteria in
qualifications are performance as well as time spent on the bench, along with scholarly legal

In the view of writer James Petras, Obama's nomination of Ms. Kagan, based on her academic
publication record, 'might give her a fighting chance for tenure at a first rate correspondence law
school in the Texas Panhandle.' [2a]

What really recommended her, in his opinion?

'The evidence points to a purely political appointment based, in part, on social networks...Kagan’s
approval of indefinite detention of suspects squares with the extremist restrictions on constitutional
freedoms first articulated during the Bush Administration and subsequently upheld by President
Obama’s Attorney General Eric Holder. It is no coincidence that Kagan appointed a notorious Bush
torture advocate, the genial Jack Goldsmith, to the Harvard Law faculty.

'...Elena Kagan got tenure at the august halls of the University of Chicago in 1995 on the basis of
one substantive article and one brief piece, neither outstanding. With this underwhelming record of
legal scholarship, she became visiting professorship at the Harvard Law School, published only two
more articles (one in Harvard Law Review) and received tenure. Prima facie evidence strongly
suggests that Kagan’s ties to the staunchly Zionist faculty at both Chicago and Harvard Law Schools
(and not her intellectual prowess) account for her meteoric promotions to tenure, deanship and now
the US Supreme Court, over the heads of hundreds of other highly qualified candidates with far
superior academic publication records and broader practical judicial experience.' [ibid]


9/11 and the Constitution

Much of the legal public square has been taken up, after the catastrophic experiences of 9/11, with
questions that go to the heart of human rights and civil liberties.

Are we entitled...to presumption of innocence? Habeas Corpus? Is it still our right to be Mirandized -
that is, to be advised of our right to an attorney and to our right to remain silent? Are we entitled to
any trial at all? A speedy trial? Are we entitled to see the evidence against us? To challenge witnesses
and evidence in an open court? Do we have the right not to be coerced into incriminating ourselves
through torture or threats, and not to have such tainted evidence used against us? Do we still retain
the right not to be locked up indefinitely?

The fact that these questions in law have been torn open to situational interpretation - laws which
were heretofore considered long settled and carved in stone - is a loud alarm sounding for us all.

The recent would-be Times Square bomber was not advised of his rights. He was encouraged to
talk, first. Then he was told he had a right to remain silent. The outline of fascism is there when
some demand we rescind his American citizenship; assume he is guilty; deny him the right to his day
in court or to see the evidence against him. They would encouragingly approve his torture to extract
useless information he thinks they want to hear so that the pain will stop - causing us to drag others
who are innocent into the evil vortex as well.

Let's take the direction of the above to its logical conclusion. Let's bring back the test once used on
unfortunate people accused, by religious idiots and enemies, of being witches. Tie him up in a chair
and throw him in a pond of water. If he sinks and drowns he's human - oh! Too bad! If he manages
to float, he's a witch and we burn him.

Conversely, keep him alive but deprive the suspected terrorist (meaning, the otherwise innocent
person) of their liberty by locking them up indefinitely - a living death.



Israel factors into American politics in a big way. Israel has gotten away with the on-going ethnic
cleansing of the Palestinian people largely through the Israel right-or-wrong political support of the

Israel's oppression of the Palestinians was cited as one of the top reasons, by Osama bin Laden, for
the attacks on 9/11. That, and the murderous ten-year military blockade of Iraq which inflicted such
devastating suffering and death amongst the Iraqi people.

The New York Times, in a city with the largest Jewish population outside of Israel, seemingly
refused to report the Israel angle as they followed the unfolding events of 9/11. Many other
American media outlets reported on 9/11 in the same way, helping to create in the American publics'
mind a false and dangerously misleading case for why 9/11 occurred, and, it follows, in what ways
the country ought to respond.

Israel and 9/11 both became factors in our ongoing war against much of the Middle East. That, and
corporate competition for scarce oil resources. Thousands of young Americans in the prime of their
youth are coming home damaged or dead from these wars never having been told the truth of why
they were sent.

Speaking of Israel and the truth, there is a big push behind the scenes in western countries, Canada
and Great Britain being two notable examples, the United States being another, to make the following
statements thought or hate-speech crimes:

One, to suggest that Israel is an apartheid state; two, to suggest that Israel should be one democratic
state with equal rights for both Palestinians and Jews. [3] [3i]

Surely other states will line up for similar legalized blinkers. Is it not possible that hate speech laws
could be enacted against Americans who criticize American policy itself, if we start down that road?
I believe that it is.

Because American society is so polarized and divided, I think any Supreme Court nominee would, in
fact, come in for the same intense scrutiny as Ms. Kagan should.

One of the most important constitutional protections in troubled political times is freedom of speech.
How do Elena Kagan's views hold up on free speech rights? From the New York Times:

'As a scholar, Ms. Kagan’s interests were narrow, somewhat technical, and steered clear of ideology.
She was interested in questions like when the government could limit free speech. “This is not a
subject about which there is any ideological slant,” Mr. Stone said. “It’s an intellectual puzzle.” ' [4]

From Jacob Sullum, a senior editor at Reason magazine:

'Kagan's understanding of First Amendment law, described most fully in a 1996 University of
Chicago Law Review article, suggests a tolerance for censorship when it is appropriately disguised by
euphemisms. In Kagan's view, the main goal of First Amendment doctrine is not to maximize
freedom or promote robust debate, but to ferret out impermissible motives for speech restrictions.

'While the government may constitutionally restrict speech based on "neutrally conceived harms,"
Kagan says, it may not restrict speech based on "hostility toward ideas." But as she herself more or
less acknowledges, this distinction ultimately collapses because people are hostile to ideas they
consider harmful.' [5]

From Marjorie Cohn, past president of the National Lawyer's Guild:

'In one of her few law review articles, Kagan advocated expansive executive power consistent with a
formulation from the Reagan administration. This is reminiscent of the “unitary executive” theory
that George W. Bush used to justify grabbing unbridled executive power in his “war on terror.”

'As solicitor general, Kagan asserted in a brief that the “state secrets privilege” is grounded in the
Constitution. The Obama White House, like the Bush administration, is asserting this privilege to
prevent people who the CIA sent to other countries to be tortured and people challenging Bush’s
secret spying program from litigating their cases in court.' [6]

In order to continue the rapacious war for Empire - in order for the military-industrial-Congressional-
religious complex to continue unimpeded - laws to suppress dissent should be anticipated.

It may seem like these disparate things do not go together. But what I would argue is that there is an
overlap of aims, desires and purposes at work. The one thing shared in common is that goals will be
reached far easier if they could whack off chunks of the Constitution.

Zealots never seem to consider what risks there might be to themselves in destroying the legal
protections of others.

We depend on the Supreme Court to be a Constitutional voice of conscience. All the most
fundamental protections of the individual from the tyranny of king or state or privileged group are on
life support. Which rights, that Americans hold most sacrosanct, are left? The answer:  few.

Through the quiet machinations of American politicians such as John McCain and Joseph
Lieberman, who, in senate bill S.3081 propose to lock up indefinitely anyone, including American
citizens, merely accused of terrorism, without charge or trial - soon the answer may be that we have
no rights left at all:

S.3081, Sec. 5 Detention Without Trial of Unprivileged Enemy Belligerents:

'An individual, including a citizen of the United States, determined to be an unprivileged enemy
belligerent under section 3(c)(2) in a manner which satisfies Article 5 of the Geneva Convention
Relative to the Treatment of Prisoners of War may be detained without criminal charges and without
trial for the duration of hostilities against the United States or its coalition partners in which the
individual has engaged, or which the individual has purposely and materially supported, consistent
with the law of war and any authorization for the use of military force provided by Congress
pertaining to such hostilities.' [6a]   (It is heartening to note that on the website Open Congress, the
split of readers who voted their judgement of this bill so far is 29 in favor, 433 against, for a mere
6% in support.)

It doesn't matter to me whether Elena Kagan is Jewish. What matters is her philosophy on the fundamentals of constitutional justice.

It matters what a Supreme Court nominee believes. It matters what his or her record is and what
they have stood for. All Supreme Court candidates go through a vetting process where ideas and
beliefs that could profoundly affect decisions in law are hopefully weighed and debated as to the
candidate's suitability.

If there is no record, there is no way to judge a would-be judge. One of the most important jobs of a
Supreme Court justice is the job of telling the state one word - that word is no. No you can't lock up
a person indefinitely without evidence or trial. No you can't torture. No you can't brand a human
being 'terrorist' to deny them the right to be presumed innocent. No you can't be President of the
United States without counting every vote cast. No you can't spy on Americans without real cause
and a warrant. No.

Telling the state no, or any particular power configuration operating within the state no, takes balls.


Judicial Independence

To risk being ostracized or shunned from one's group when making pronouncements on issues of
right and wrong takes tremendous moral courage, too. The group might include your friends, family,
neighbors, colleagues, religious community or even most of your whole tribe.

The threat of being shunned is a powerful disincentive to swim against the current of your group's
opinion - regardless of whether or not you are on the side of justice and truth. Studies have
determined that to be ostracized or shunned can have tremendously negative effects on the
individual, both psychologically and physically.

A very recent example of shunning:

South African judge Richard Goldstone is internationally renowned and highly respected in the field
of law. He agreed to conduct an independent review, for the United Nations, of Israel's late 2008 to
early 2009 military assault on Gaza, for evidence of war crimes by both sides.

Goldstone is Jewish. No doubt he had at least an idea of what he would be in for, but he chose to
serve and accepted the assignment, anyway. The Goldstone Report concluded that serious war
crimes were committed by both sides and that these required further investigation.

Israel came in for unaccustomed direct, harsh criticism, weighted in fact:

Paragraph: '1883. The Gaza military operations were, according to the Israeli Government,
thoroughly and extensively planned. While the Israeli Government has sought to portray its operations
as essentially a response to rocket attacks in the exercise of its right to self-defence, the
Mission considers the plan to have been directed, at least in part, at a different target: the
people of Gaza as a whole.' [6b]

Subsequently, the South African Jewish community threatened to picket Judge Goldstone's
grandson's bar matzvah. Goldstone put out a statement that he wouldn't be attending so that his
grandson's day could proceed unspoiled.

The S.A. Jewish leaders put out word that they would call off their planned picket if Goldstone
agreed to a meeting, which he did.

They used his grandson, and in effect held his family hostage, in order to try to manipulate this judge.

In fact, Judge Goldstone has been smeared, vilified and portrayed as a traitor and a self-hating Jew.

These kinds of attacks by the group against the individual applies an unbelievable amount of
pressure, and it can be extremely effective - which is, of course, why it's done; not everyone is stout
enough of heart, nor independent enough of mind and spirit to withstand it.


The Palestinian Equation

Palestinians suffer arbitrary arrest, torture and indefinite detention without trial. They suffer
property and home confiscation as well as home demolition, with little notice or legal recourse.

Twenty-three year-old American peace activist Rachel Corrie was crushed to death in 2003, by an
Israeli military Caterpillar bulldozer. She put stood in the path of the Cat to block it from destroying
a Palestinian physician's home. She was at eye level to the driver, standing on a mound of earth;
daylight visibility was good. The Cat drove forward over her and backed up over her again.

Of the Spring 2010 Gaza Freedom Flotilla, the last boat prevented by Israel from carrying relief
supplies to the people in Gaza - people who continue to endure a life of want and despair under
Israel's continuing military siege - was named after her: the MV Rachel Corrie.

In the Occupied Palestinian Territories, otherwise known as the West Bank, Palestinians suffer life
under military occupation, surrounded by hostile Jewish extremists who believe God gave them the
right to steal Palestinian land and to kill them, if necessary, to take it. There are Jews-only roads and
Palestinian villages surrounded by troops, barbed wire and locked gates that are opened by Israeli
troops for only fifteen minutes, three times per day.

Palestinians live under the constant threat of Jewish violence. Yet Palestinians are not permitted to
defend themselves. The Israeli military passively looks on while Palestinians are brutalized and does
nothing - when, that is - the Israeli military isn't brutalizing Palestinians itself.

Part of what makes the entire situation so bitterly unpalatable is the fact that Jews themselves should
know all too well from their own history how abhorrent and morally wrong it is to be treated this way.

As noted earlier, there is a quiet but powerful push to criminalize criticism of Israel. That requires
fundamental shifts in civil rights law. Bringing us back to Elena Kagan's Supreme Court nomination
and the questions outlined above.


Vet them; protect them

In vetting a Supreme Court nominee, these days it might be prudent to ask whether or not they are
impervious to threats and intimidation in an increasingly polarized society.

From former American Vice President Al Gore's New York Times bestselling book, 'The Assault on
Reason', (Penguin, 2007):

'One of the coalition's "constitutional scholars," Edwin Vieira, echoed [Ann] Coulter's hateful rant at
a conference on the so-called Judicial War on Faith by explaining how he would recommend
handling the Supreme Court. He actually quoted Joseph Stalin, saying that Stalin "had a slogan and it
worked pretty well for him whenever he ran into difficulty: 'No man no problem.'

"The only way to explain an American constitutional scholar endorsing ad hominem attacks on Supreme Court justices is to assume that he has abandoned reason and surrendered to dogma. Moreover, by quoting Stalin - a homicidal dictator whose only peers are Mao and Hitler - he had to realize that people might
interpret this as a vague threat of physical violence against justices whose opinions violated right-wing orthodoxy.' [7]

Obviously, a society based on laws must have a legal community that is able to conduct itself free
from fear and intimidation.


In spite of the tremendous importance to the country that a nomination to the Supreme Court entails,
we are supposed to support the inexplicable nomination of an individual who has no judicial record
of any kind, in an increasingly shaky and unstable democratic environment.

These are some of my concerns with regard to any Supreme Court nominee, and the direction of the
Supreme Court: Restoration and protection of civil liberties; judicial independence from influence, or
prejudice, or religious parochialism; putting the interests of the country and the constitution ahead of
any other consideration of any kind whatsoever.

If a nominee is able to demonstrate that they can foot this bill? Hire them. Then please make sure
the Supreme Court justices are secure.

It's a tough job in tough times. It shouldn't be made any tougher having to worry about wing-nuts
making veiled threats quoting Stalin.

'Diane V. McLoughlin is a writer and peace activist particularly focused on the Israel-Palestine
region. Ms. McLoughlin posts editorials of her own along with excellent links to articles and video
she discovers on the web on her website, mcloughlinpost.com and on her blog at mcloughlinpost.
blogspot.com. Follow on Twitter: McLoughlinPost ; Friend on Facebook: Diane McLoughlin;
contact at mcloughlinpost.com'


[1] 'Are liberals anti-WASP?'; Patrick J. Buchanan; worldNet Daily; May 13, 2010;

[2] 'Elena Kagan, Pat Buchanan, MSNBC and Me'; Keli Goff; Huffington Post; May 17, 2010;

[2a] 'Elena Kagan and the Supreme Court: A Barnyard Smell in Harvard, Chicago and Washington';
James Petras; Information Clearing House; May 13, 2010

[3] CPCCA - Canadian Parliamentary Coalition Combating Antisemitism Frequently Asked
Questions; http://www.cpcca.ca/faqs.htm ;

[3i] 'Criminalizing Criticism of Israel'; Paul Craig Roberts; Counterpunch; May 7, 2009 ;
http://www.counterpunch.com/roberts05072009.html ;

[4]'A Climb Marked by Confidence and Canniness'; by Sheryl Gay Stolberg, Katharine Q. Seelye
and Lisa w. Foderaro; May 10, 2010; The New York Times;

[5] 'Bounds of Silence: Obama's Court Pick Looks Wobbly on Freedom of Speech'; Jacob Sullum;
Creators.com; May 18, 2010;

[6] 'Kagan's Dubious Stand on Civil Rights'; Marjorie Cohn; Consortium News; May 15, 2010;

[6a] S.3081 Enemy Belligerent Interrogation, Detention and Prosecution Act of 2010

Report of the United Nations Fact-Finding Mission on the Gaza Conflict; Part Five Conclusions and
Recommendations; September 25, 2009; Pg. 406

[7] 'The Assault on Reason'; Al Gore; Penguin Books; Copyright Al Gore, 2007; pgs. 66-7.

Copyright 2010; Diane V. McLoughlin, All Rights Reserved

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