Elena Kagan is unfit for the Supreme Court

(noon. – promoted by ek hornbeck)

U.S. Solicitor General Elena Kagan has an excellent shot at being nominated for the Supreme Court when John Paul Stevens retires.  

The President will want a highly qualified nominee, obviously.  Beyond that, the calculation for the White House will be almost entirely political.  Rahm Emanuel will have overriding control – if not minute-by-minute involvement – just as he did with Justice Sotomayor.  And as with that previous confirmation, the calculus will be one of the political costs and benefits of the highly qualified candidates at the political moment in time.

Kagan is technically qualified, but unfit for the job on ideological grounds, imo.  I base that opinion on her arguments concerning the broad sweep of anti-terrorism laws recently made to the Supreme Court in the case (Holder vs. Humanitarian Law Project) concerning Robert Fertig, a lawyer and president of the Humanitarian Law Project, who gave “expert advice or assistance” to the PKK in Turkey.

LA Times:

Since 1997, the State Department has listed the Kurdistan Workers Party, or PKK, as a foreign terrorist group, which means that Fertig could go to prison for giving “expert advice or assistance” to Kurdish leaders.

Kagan agreed that Fertig could be prosecuted. She also agreed that an American citizen could be prosecuted for drafting a legal brief or writing a newspaper article in coordination with a banned group.

For his part, Cole urged the justices to rule that the 1st Amendment protects those who speak out on behalf of or advise foreign terrorist organizations, as long as they advocate only peace and nonviolence.

Her reading of the anti-terrorism law, the so-called and ineptly named “Patriot Act,” may be perfectly valid, in a very circumscribed, small bore kind of way, but the law itself is entirely too broad and subject to usurpation and abuse by the executive branch, by an already too powerful unitary executive for whom “terrorism” has become an all-purpose, off the shelf excuse to do anything he damn well pleases.  I find Kagan’s vigorous defense of the law disturbing, even if it is her job to do so.  Either Kagan favors the broad powers of anti-terrorism laws, or she is unprincipled enough to defend them.

Drafting a legal brief is perfectly acceptable behavior, an act that explicitly and implicitly embraces the rule of law.  Denying anyone the embrace of the law is an act of tyrants.  As Justice Breyer asked:

“What’s the government’s interest . . . in forbidding training in international law?”

Damned good question, Stephen.

And writing a newspaper article?  Are you kidding me?  The Supreme Court has given unlimited free speech to corporations, but considers actual people endowed with freedom of expression to be non-persons?  You pulling my leg?  What is the government’s interest in suppressing free speech?  Especially free speech concerning lawful and peaceful advocacy?

This law conflating peaceful, lawful activity with terrorism is purely tyrannical.

Listen to more of Kagan’s argument and see if you agree:

” What Congress decided was when you help Hezbollah build homes, you are also helping Hezbollah build bombs. That’s the entire theory behind the statute.”

Heckuva theory.  Again, Kagan may be reading Congress correctly, but that’s not the point.  She is defending the idea that “peace is war” if you are said to belong to or associate with the wrong group of people.  I find this argument repugnant.  Understand that Fertig has broken no laws, except potentially peaceful advocacy through international law.

As Fertig says,

“I want to help the Kurdish people develop non-violent means of resolving their conflicts and have their case be heard by the world’s community.”

Indeed, how else can they go about obtaining non-violent resolutions if that avenue is de facto closed to them?  It’s preposterous thinking.  It’s monstrous.

Scalia’s claim that terrorists exist only to create violence without having other “philosophical” purposes was pure bunk.   I seem to recall some sort of insurgent violence at the beginning of our own country, because said insurgents felt “under-represented” politically.  Scalia seems to think there are grades of humanity: those who are motivated by philosophical organization and those who live for violence for its own sake.  I don’t recall learning about that particular speciation event in Evolutionary Biology, but defining two grades of humanity is exactly what Scalia, and by extension, Kagan, is doing.

Finally, what’s up with Kagan’s exceptional treatment of harmonica lessons for al Qaeda?

But Justice Sonia Sotomayor suggested that the law might sweep too broadly by making, say, harmonica instruction a crime because it involves specialized training.

Ms. Kagan did not take a position on the question. But she did allow that “there are not a whole lot of people going around trying to teach Al Qaeda how to play harmonicas.”

Given the broad sweep of the Patriot Act, this is completely arbitrary, as Kagan indicates by her non-answer.  Kagan is unfit for the Supreme Court.

And yes, she is one of those Kagans who have been wrong about everything in the war on terror, so I guess it runs in the family.

Oh, look.  I’m not the only person who doesn’t trust her.


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  1. Compound F

    support her.

  2. Xanthe

    just instinct.  And here she will be writing decisions that will affect me. But I’m so screwed by this country now – will it make any difference?

    Does she feel the same way about helping Israel buy Caterpillar equipment?    

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