OK, Kagan SUCKS. We are betrayed

Folks, I tried to keep an open mind.  I really did.  And most of you should know by now that while Liberal, I'm no moonbat.  My numerous dustups over the past couple of months with ClassicLiberal (who I'd say is DEFINITELY a moonbat! LOL) should be evidence of that.  I cast my vote for Obama knowing that he was a Left-Center moderate, and NOT any kind of the socialist, etc... that the Right have tried to paint him as, using crude stereotypes barely applicable to the likes of Jesse Jackson and Al Sharpton, and seemingly 180 degrees off the mark when applied to Obama.  But if there is one area where I hold hard core liberal (socially libertarian views, actually) and that is the Supreme Court.  And while there STILL isn't much to go on with Kagan, what little there is showns here to be on the WRONG side of free speech, the WRONG side or Corporate influence andf the WRONG side of Executive Power.  And these three things pretty much top my list of Constitutional issues.  OK - if she came out as a hard-core anti-theist / seperation-of-church-and-state type, I could probably come around to her.  But she's said and written so little on any topic that I don't see how I could believe that at this point.

But my once open mind is now made up, and I feel compelled to say this, on no uncertain tearms: ClassicLiberal is RIGHT.  Kagan SUCKS.  And this nomination is nothing short of an abject BETRAYAL on the part of President Obama.  This is not "change I can believe in." This is more like "shit I can't believe."

I'm going to re-post the links to the two excellent artices that he pointed me too: Johnathan Turley's piece, and Glenn Greenwald's post on Salon.  READ THEM.  Between those two and this piece by Marvin Ammori on HuffPo, as well as some of the other articles I linked to yesterday, I am convinced that Elena Kagan (and by extension, apparently Barack Obama) has her head up her ass when it comes to the First Ammendment.  And I'll throw the Right a bone on this: The SECOND Ammendment is there in case they forget about the FIRST.  And if this nomination goes through, it would take SIX applications of the second ammendment to fix the court, when today it would take only four.  She ABSOLUTELY needs to be "Harriet Mierred."  She WON'T be... because the Democrats have NO BALLS AT ALL.  But she needs to be.  And Obama should be firmly rebuked for this BETRAYAL.  He won't be...because the Democrats have NO BALLS AT ALL.  But he needs to be.

And just to show this is a principled opposition, and not just a case of "she's not liberal enough" I want to refer to a couple of recent examples of free-speech where the speakers were punnished for saying something downright CONSERVATIVE; and which seem to be cases where Kagan would seem to vote that these punnishments were acceptable.

First, the students sent home from school for wearing American Flag T-Shirts on May 5th.  Now I'm no fool: I know exactly why they were doign this.  A do you know what?  Why I despise what they were saying - both for the inherent racism of the message and the disrespect it showed the FLAG - I'm willing to fight, kill and die to protect their right ot SAY it.  And in case you feel so inclined, don't bother citing precident to me.  We went through that on MMFA and I'll stand by my original judgement that the school GROSSLY over-reached.  Kagan seems to think, in her support of broader anti-hate speech rules, that the school would be justified because of the message the students were sending.  And that is the EXACTLY, 180 degrees WRONG way to read the first ammendment.  To think that, I wonder if she's even READ it!

The other, far more disturbing case, was the one of the United States Marine with the Anti-Obama facebook page.  Now, in the military their are well known restrictions of basic freedoms.  In the military you follow orders.  And traditionally speaking freely is something that requires specific permission.  What's more - this is an enlisted man who was openly critisizing the COMMANDER AND CHIEF - his MOST superior officer.  But do you know what? I think the ACLU has this one right.  As long as this soldier confines his remorks to his time OFF-DUTY, and carries out the orders he's given, to support the foriegn policy of the administration to the best of his ability - IOW, as long as he mainatins discipline in the field?  He should be able to say whatever he wants.  How can we honestly say we fighting to protect freedom (either theirs or ours) if we seek to silence those doing the fighting, during the times when they are not on actve duty.  And given her views on executive power, as well as free speech, (and her less than enthusiastic support for the military, not that this is a facor for me) I don't see her standing up for this soldier.  And I would - even though I think his message is treasonous!

Now you can agree or disagree with me on these cases (and I don't mind discussing them, though I'd prefer to do so in another post) but you have to concede this point to me: Most Liberals are willing to defend speech that they don't agree with, as a matter of PRINCIPLE, to protect the FREEDOM of Speech.  Conservatives have shown time and time again - most recently in Citizens United - that they are NOT willing to do this.  And, as descirbed in the HuffPo piece, Kagan argued Citizen for the Government and LOST.  Now... whether she did so deliberately (which the post seems to imply, IMHO) or merely due to incompetence (as laid out in that same piece) she is NO STRONG, PRINCIPLED DEFENDER of Free Speech.

I will stop short of saying that I won't vote for Obama in 2012 - although I won't, if there's a primary challenger!  Is she preferable to the likely McCain/Palin nominee?  Yeah, probably.  But I was NOT voting for what I though was the 'lesser of two evils.'  I though I was voting for the lesser GOOD, over the greater EVIL.  Now I see that I was not.  That I did, in fact, merely take the lesser of two evils.

Kagan has to go.  Show me a petition and I'll sign it.  Send letters, call your Senator- especially if he's a Democrat!  I'd love to see every one of these spineless jellyfish GO.  The only thing that stops me is the knowledge that those without BRAINS (Tes Bag Republicans) will replace those without BALLS if the Democrats lose.  (And if the Republicans gain MORE influence, there won't be any restraint of the continued corporatization of this country, and the increasing drowning out of opposition voices.)  That's the reality and the reality sucks.  But this nomination is just intolerable.

I say: Let the Right attack her.  Let them tear down with even the worst, most absurd slander.  I hope the win this one.  Then maybe Obama will get his head out of his ass and pick someone like Judge Diane Wood. 

Kagan needs to go.


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One point of clarification: Why don't I believe that corporations deserve the same Free Speech protection?  Why am I so against the decision in Citizens United?

Let me get to that in my next post.

The Kagan Nomination

Whenever I read about an issue, person or piece of legislation, I often find it extremely instructive to then read about what the critics say about it - and sometimes jujst to find out who those criotics are - before deciding how I really feel about it.  After all, I may interpret something in one way, and it might not occur to me to see things the way a critic does.  In much the same way, finding out that "civil libertarians," or "relighious rights groups," or "the 'X' industry," or "environmentalsts" are in favor of or opposed to something can often tell me a lot more about the issue than I can learn from reading the ilterature written by its or their supporters.  And the opposition need not even be principled - this is why I like MMFA.  In showing the opposition to be based on MISINFORMATION, it shows me that there is perhaps nothing LEGITIMATE for them to point to to criticise.  In the case of THIS NOMINEE, Elena Kagan, this type of opposition is a bit distressing.

In the "defense" of this nominee, MMFA - an unapologetically liberal website - goes to great lengths to dispell the Right Wing "myth" that Kagan represents a far-left, radical position.  And they do a good job of dispelling this.  They show, very clearly, that either the conservatives are just flat-out lying, or that their fears are vastly overblown.  They show that this is a nominee that is not necessarily hostile to the institution they hold dear.

And therein lies the PROBLEM.  Personally I'd like to see a nominee that's a little hostile to religion as a political force.  Who IS a bit skeptical of the Military's ability to do anything other than fight wars (IOW: blow shit up and kill people) and who sees WAR as a last resort, rather than the preffered choice in dealing with foreign policy.  When you look at Scalia, Thomas, Roberts and Alito and recognize the absolute rubber-stampt they represent to the Right, only the starkest possible contrast should suffice to replace the retiring Stevens.  I myself found Judge Diana Wood to be an interesting choice.  But instead we get Kagan.

Now... don't get me wrong.  Personaly I think that statements such as "she'll move the court to the right" are ludicrious.  The President nominated the former Dean of Harvard Law School, for Pete's sake, not Phyllius Schlafly.  And I'll be the first to admit that I don't know NEARLY enough about Kagan, or Wood for that matter, to make a truly eductaed assessment of their potential impact.  My biggest complaint about Kagan really come from what I think I know about her views on executive power.  But then I have to realize that my understanding of her positions come from what she did in her role as SOLICITOR GENERAL - where it was her JOB to advocate for the executive branch.  Hardly a position where one's libertarian viewpoint would get center stage.  One could almost argue that fomrer solicitor generals - people who built their resume defending the government's position - should be made inelligible for a SC nomination... But then we'd never have had Thurgood Marshall!

And, going back to my previous post on Wood, I don't necessarily see Kagan VOTING very differently than Justice Stevens did.  And this statement has been made repeatedly by her critcis and supporters alike.  But to me the real question is not how she'd VOTE (which I don't think is really in question) but rather whether she would advocate for the liberal position, and how effectively she would do so.  I liked Wood's politics well enough, but I what I really liked was what I read about her ability to pursuade those who would be inclined to disagree with her.  I saw this as a sign that she could influence Justice Kennedy, and gets some WINS for the Left.  I've read the same thing about Kagan - and as a lawyer, influencing people is waht she DOES - but I just don't know enough about her to know just how OFTEN and on WHAT ISSUES she's USE those powers of pursuation.  (PFAM is not much help in this department - they have a lot to say about the Roberts Court, but little one way or the other about Kagan herself.)

Now... I do NOT, as my friend ClassicLiberal has proposed, belive that the Kagan nomination is somehow grounds for (figurative) impeachment.  But I am disappointed that Kagan got the call over more liberal cadidates.  I would have strongly preferred Wood...

...And I find myself in the rare position of wishing that the conservatives were right!

Swing the Wood

An article in today's NYT has essentially sold me on one name supposedly on President Obama's short-list of nominees to replace retiring Justice Stevens.  And that potential nominee is Judge Diane Wood.  Now, I haven't  done any extensive research into her decisions.  From what I read, she's liberal enough.  And really in my mind that goes without saying, [the reader's] opinion of Justice Sotomayor not withstanding.

(For the record, I was absolutely fine with the choice of Justice Sotomayor, and while their may have been more Liberal choices available, she has so far been on the side of freedom and liberty in the only 5-4 decision thus far, and I'm willing to bet that she'll never be to the Right of Justice Kennedy nor join the Facist wing in any 6-3 decisions.  In any case I don't see any reason to believe that Justice Wood would VOTE any farther to the Right than Justive Stevens did, and that's good enough for me.

What the 'Times article highlights is what I see as the single most important attribute for the nomonee to posses: The ability to influence those who might disagree with her.  She has a record of being able to influnce and win over the two conservatives she worked with on the appeals court, and by extension, should be able to pursuade Justice Kennedy.  That fact that she does not alienate her opponents (I'm talking on the BENCH now, not in congress or in the public!) is critical, because Justice Kennedy is, for better or worse, the most powerful man in the free world right now, and in any contentious case involving civil liberty, it will be HIS VOTE ALONE that decides the fate of those freedoms and liberties.  And we cannot allow the Right wing to take anything else away from us!  We are already well beyond the point at which I say, "THIS FAR, NO FARTHER!"

The President's choice must not be chosen as a 'consensus builder' in Congress, or even in the public's eye.  But they should absolutely be a 'consesus builder' in the COURT.  (Although admittedly by 'consensus,' I mean the four liberals, plus Kennedy.) So from that POV, at this point I'll go out on a limb and name Judge Wood as my front running pick as well.

Justice Stevens, the Supreme Court

The recently announced retirement of Justice Stevens highlights the primary reason I will not be able to abide another Republican President until either the balance of the court changes of the philosophy of the party does. I mentioned the other day that one of my fears after Bush v Gore was the inevitable hard-right shift of the court. Bush replaced the hard-right Chief Justice Rehnquist was the even more hard-right, yet much, MUCH younger Chief Justice John Roberts. But that was only insurance, it didn't created a shift it just prolonged the status quo. The real shift came when regular swing-vote, Justice Sandra Day O'Connor retired, we get the hard-right Samuel Alito. (Or Justice "Scalito," as I think you can safety call him.) THAT was HUGE.

Prior to that, the vast majority of non-unanimous case lined up with Rehnquist, Thomas and Scalia on one side, Breyer, Souter, Stevens and Ginsberg on the other and both O'Connor and Kennedy as swing votes. And O'Connor sided with the liberal wing more often than Kennedy did. By the time Bush was done The Right had Roberts, Thomas, Scalia and ALITO voting reliably in one four-vote block, Breyer, Souter, Stevens and Ginsberg reliably voting in the other... and suddenly Justice Anthony Kennedy was the most powerful man in the world. (Honestly? Looking at how things worked out? At this point, I'd have strongly preferred Harriet Myers! File that under, "Be careful what you wish for!")

So Obama has now replaced the retiring Justice Souter with Justice Sotomayor, and will soon have to nominate a replacement for Stevens. And not to be morbid, but givien Justice Ginsberg's health issues, I'll give you even odds that he'll be facing a third vacancy within this term, and I'll guarantee you he'll be filling her seat if he wins reelection! Now just imagine for a moment what the prospect for our civil liberties going forward would look like if JOHN McCAIN (with Sarah Palin whispering in his ear ala Greema Wormtounge) had the opportunity to replace 3/4 of the court’s liberal wing! The ACLU might as well close up shop right now!  And I have to tell you, knowing that the three of the four memebers of the "liberal wing" were also the three oldest members of the court made another conservtaive presidency a truly terrifying prospect for me.  How this wouldn't scare the crap out of ANY freedom loving American, I'll just never understand.

Anyway, that's all I really wanted to say.  As for who Obama chooses?  I'm not all that concerned.  I'm sure it will be someone, like the other three members of the Liberal Block that reliable VOTE liberally.  But that's not really the problem.  The problem is that whomever he chooses will probably not have the charisma and influence that Stevens had, and thus will almost certainly not have the level of skill in persuading Justice Kennedy that Justice Stevens had.  So while we'll still have our FOUR reliable votes, we'll inevitably be less able and likely to get that fifth vote.  Can't be helped, but if McCain had won, it wouldn't even be a issue.