Kagan Will Move Supreme Court to the Right

While Bush was shredding the Constitution with his unprecedented assertions of executive power, law professors throughout the country voiced strong objections. Kagan remained silent.
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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 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, 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. 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

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

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 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 Thomas Jefferson School of Law and
past President of the National Lawyers Guild. She is the author of
Cowboy Republic: Six Ways the Bush Gang Has Defied the Law and
co-author of Rules of Disengagement: The Politics and Honor of
Military Dissent (with Kathleen Gilberd). Her anthology, The United
States and Torture: Interrogation, Incarceration and Abuse, will be
published in fall 2010 by NYU Press. Her articles are archived at

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