With Kagan On SCOTUS, We Are Still Down A Justice

With the long anticipated retirement of Justice John Paul Stevens, it was important for President Obama to appoint and get confirmed a new justice so there would not only be a full compliment of justices on the court, but to insure the ideological balance of the court was maintained. By selecting Elena Kagan, Obama certainly did not pick the most qualified person for the job, nor did he maintain the ideological balance particularly as Kagan undoubtedly moved the court to the right at least to some degree.

Now, it turns out, by appointing Kagan Obama did not even give the Court a full compliment of justices. From the Blog of Legal Times:

Supreme Court Justice Elena Kagan this week quietly recused herself in 10 cases that will be argued in the term beginning Oct. 4, bringing to 21 the number of cases in which she will not participate.

That represents more than half of the 40 cases the Court has already agreed to hear in the new term — a number that will grow in coming months as the justices agree to hear arguments in more new cases.

During her confirmation this summer, Kagan already indicated she would recuse in 11 cases in which she was counsel of record as solicitor general. The new batch appears to reflect a determination that her participation at earlier stages — even where her office did not file a brief — required her to step aside.

So, as it stands today, Kagan will not be participating in over half the cases on the Supreme Court docket for the coming term. Lovely. A full list of the cases Justice Kagan has recused on to date can be found at the BLT link.

What is more distressing, however, are the cases to come that Kagan will also undoubtedly be recusing on. For instance the al-Haramain, Jeppesen and Jewel cases from the 9th Circuit. There are a whole plethora of Executive/Unitary power, Habeas, Gitmo, Detainee and other critical war on terror cases Kagan either did have, or may have had, her fingers on as head of the Solicitor General’s office. At this point, it looks like she plans on recusing herself from anything and everything that was in her vicinity, no matter how nominally. As should be well known by now, there is no necessity for a justice to recuse from everything they have ever known about, no less an authority than Antonin Scalia proved that.

Now, quite frankly, I have no problem with Elena Kagan recusing from consideration of Vaughn Walker’s decision in al-Haramain, I think the case would be better off without her toadying for the Obama Administration’s view of supreme Executive power and covering of crimes through assertion of state secrets, but what about the Prop 8 Perry v. Schwarzenegger case? In case you have forgotten, a portion of that case (the cameras in the court issue) went to the Supreme Court; if Elena Kagan decides she has to recuse herself, or is looking for an excuse to avoid such a controversial matter, that is going to be a HUGE blow to the chances of success on appeal.

I wonder how many people really understood they would be getting a part time justice for such a critical period over the next couple of years? And for all those on the liberal end of the political spectrum that carped about the fundamental dishonesty of John Roberts when he swore he was just a “balls and strikes” kind of guy “respectful of precedent”, I wonder what they think of the same type of deception from Kagan when she ridiculously understated the depth of her anticipated recusal problem to the Judiciary Committee?

There were a lot of things needed from President Obama’s choice to fill the seat of Justice John Paul Stevens; none of them have been fulfilled so far by Elena Kagan.

  1. Mary says:

    I think everyone here saw this coming and it makes me crack a filling thinking about it – and where were guys like Durbin and Leahy and Feingold and Whitehouse to push for a full compliment?

    This way, Kagan gets to usher in torture without getting her little mitts dirty with a real opinion.

    I’ve been certain of where Obama was going since he picked Hillary for Sec of State, but what has done me in with the party as a whole has been what it has done and not done re: judges and Justices. I don’t know how often I’ve been admonished that you can’t let Republicans pick the judges and that’s why even Blue dogs have to be supported, to fill the lifetime slots with something better than a Kavenaugh.

    Kagan’s not better than a Kavenaugh.

    • bmaz says:

      Well, you know, she was not particularly honest with the Judiciary Committee as to the real depth of her anticipated recusal problem. Just about as dishonest as Roberts was when he swore he was just a “balls and strikes” kind of guy “respectful of precedent”. But the DOJ is out prosecuting Blago and Clemens for false statements because they claimed they were innocent. What a country.

      • Mary says:

        Wait wait wait – don’t discount the play not on the screen – this could all be part of the eleventy dimensional chess game, right?

        I hope some Republican introduces a bill to cut her pay and benefits in half for the half of the first term that she’s sitting out.

        • bmaz says:

          Well, in fairness, more cases will be added to the docket, not all of which she will recuse on you would think; but, still, this is rather amazing.

        • DWBartoo says:

          Just “rather amazing’?

          Come now, bmaz, this is absolutely sterling eleventy-eleven dimensional chess-like scheming…

          This is no common, ordinary legal morass, we find ourselves in the midst of, this is elite crap, this is ivy league supreme, the brightest and bestest stuff.

          What was it phred said, a couple posts back?

          Something about it all going according to plan?

          Then, EW, in the same post, said something about the apparent truth that most people don’t care.

          What was it the WSJ “Law Blog” which fatster linked to at the tail-end of the last post said?

          “The court and the nation can certainly live through this; we’re not staring down a constitutional crisis or anything.”

          Rather amazingly lucky, aren’t we?/s


        • phred says:

          I’m not sanguine that we are not staring down a “constitutional crisis”. I didn’t see the link, so perhaps it is all in how one defines the crisis. Maybe the WSJ blog doesn’t view tearing it up and throwing it away as a crisis, but I do.

          I just got back from the airport and as I was channel hopping on the radio, a caller had called into to the local right wing affiliate to vent some spleen about the stupidity of molesting 90 year old grandmas at the airport. The radio host was an idiot (basically agreeing about grandma, but pivoting to “profiling is all we need” b.s.). I know I keep harping on this, but to me they might just as well hang a banner on Logan that says:

          Welcome to the Police State of Massachusetts
          where our officers can’t wait to get to know you better!

          And all I could I think of was all of the people coming and going who just don’t give a damn. And I wonder, how far is too far? I know where my limit is (and the TSA has gone way passed it), but what would it take for a majority of Americans to revolt? I don’t mean guns and revolution, I mean simple acts of defiance, refusing to cooperate/participate in whatever demeaning act the government demands next? I have no idea, but it is obvious to me, that there isn’t a soul in any branch of our government who has any intention of bringing the era of abusive power to a close.

          I don’t know that it matters if Kagan bothers to ever give us her opinion on anything. She got confirmed without sharing her opinions. She has no evident legal or personal philosophy. She’s just another grasping opportunist aspiring to positions of power just for the sake of power, not out of any vision or desire to serve others. What does she care about the Constitution or justice or a functional democracy? She got her plum position and now she can rest on her laurels and collect her paycheck and when things go to hell in a handbasket blink pleasantly into the camera and say there was nothing she could have done, it was all the Republicans fault.

          Yep, DW it is all going according to plan. Hail Caesar.

        • DWBartoo says:

          We is together, in our “crisis” assessment, not sanguine, phred.

          However, methinks we is a minority.

          Heil Whomever.


        • DWBartoo says:

          What it would take?

          I guess we shall have ample opportunity, looking forward, to see what it will take …

          One hopes that there ARE limits to what will be tolerated …


        • phred says:

          You would think, but I’m not so sure… I wondered if people actually had to check everything at the door to the terminal and had to walk through the terminal, fly, walk through the arrival terminal all completely in the buff, and not until they walked out again would they be permitted to collect their possessions and clothes, would that do it? Would that be too far? Or would we still have the terminally afraid saying that whatever it takes to “keep them safe” is fine by them? I honestly don’t know what the answer to that question is anymore.

          We is indeed in the minority, but at least we is in good company : )

        • michaelfishman says:

          Not to worry, DW…there always are. Look how the Germans drew the line on the final solution. How the muslims world-wide laughed off the Danish cartoons. How the Israelis reined up on Eretz Israel. The human system has the same built-in negative feed-backs as the changing climate.

          (How are you feeling, by the way?)

        • donbacon says:

          I Am Detained By The Feds [TSA] For Not Answering Questions

          It’s worse than you indicate. The same thing has happened to me and others on INTERNAL US highways at Border Patrol checkpoints. See checkpointusa.org

          Freedom of speech includes the right to remain silent, plus it’s a natural human right which is in a negative sense the rationale for torture — to break a silence.

        • KenMuldrew says:

          …what would it take for a majority of Americans to revolt? I don’t mean guns and revolution, I mean simple acts of defiance, refusing to cooperate/participate in whatever demeaning act the government demands next?

          Well it depends on the cost, doesn’t it? If one’s livelihood depends on, e.g., flying, and one doesn’t have the means to live comfortably for very long without the job, then one submits to the required indignities. If one likes traveling, if that is the greater part of their joie de vive, then they, too, submit. And as long as the envelope of further indignities is pushed one small step at a time, so that a majority can get with the program before the goalposts are moved yet again, then so much the better.

          Very likely it only ends in crisis, whether that is through “guns and revolution”, or ecological disaster, or some other external. No way does it end through collective civil disobedience; the collective just isn’t there. The “nation” isn’t there.

          At one time, the “nation” (seen in opposition to the “state”) was the collective self-image of the citizens that was shaped through the media, through the arts, through the stories and narratives that arose from a shared history (and a shared present). There was an agreement, by and large, on the nature of reality and the arc of history. A single, collective agreement on what was real and what was hogwash. That was the sort of thing that led to the formation of nation-states, and that was most certainly the basis of the American nation until quite recently.

          The forces that bind the nation are no longer unified in the U.S. The various media that inform people have been splintered into thousands of diverging channels. Those channels that persist from the days before the tubes have become relentless propaganda outlets intent on driving their nation toward harmonization with corporate interests, they care nothing for the public interest, or for the story of the nation that was. The new channels are more direct, without the control of editors, publishers, and billionaire owners. They tell the story as individuals who observe and incorporate what they see into the body of knowledge that is shared by their readership, and more importantly, with the understanding of reality that is shared by their readership. And it turns out that substantial, even vast, numbers of Americans are willing to openly proclaim their disagreement with what was formerly accepted as reality.

          “The clock is driven by the force of gravity acting on the weights that slowly unwind”. That used to be an utterly uncontroversial statement. Any given gentleman of the 1950s would be incredulous to learn that such non-controversy defined the nation. Yet now it is not surprising to learn that a fringe group exists, and boasts of its existence, and furthermore attaches its existence to a political movement, which stands in opposition to this statement, and is willing to defend their opposition to the very core of their being.

          It turns out that a “majority” of Americans needs these people. They are not fringe because their political alliance has given them the power to insist on the equality of their vision of reality. So a majority of Americans will not adopt simple acts of defiance and refuse to cooperate with the acts of obeisance demanded by the state. There is no longer a shared identity that allows a majority to arise spontaneously for such acts. The political costs to the alliance that denies reality is too great, and the individual costs, now that these people have stood up and declared their “differences”, are also too great. The nation is fractured though the state remains unified.

          As long as the political process is restricted to a two-party system, the alliance of crazies will hold power over those who respect reality. It’s basically the parable of the tribes translated to an electoral system of representatives. Break the two-party hegemony and the crazies will fracture like taffee in liquid nitrogen, but to do that one has to abandon what was the American Nation. The national story, the long, hard, costly struggle of the republic is embedded in that two party system. But it has been gamed, and gamed well. Checkmate, one may fairly say. The only thing left is to realize that Chess wasn’t the game, it was just a proxy.

        • KenMuldrew says:

          Yes, I suppose there is some sadness there. I was enjoying myself while writing it, though. A tall scotch after dinner, and then just thinking out loud while I continue to try to figure out what I wanted to say in the 9th circuit thread. Slouching towards coherence?

        • bmaz says:

          Well, this crap does get rather existential after a while eh? There is so much profoundly wrong, on so many levels, it is a struggle to try to put it in a framework that provides some explanation and comfort of rationality. I am not sure if there is one, but if you are like me, it brings some solace looking for it.

        • KenMuldrew says:

          A framework: that is exactly what I am groping for. How to make sense of the irrational. It’s such an exasperating experience. Why should anyone want to insist on obvious falsehoods? While trying to figure out why I thought the whole corpus of acceptance surrounding classified information and national security secrets had to be re-thought, I typed the word “nation-state” and began to reflect on the differences between nation and state, and it sort of led me to those reflections in 17. They’re just labels, of course, but as Thomas Pynchon once remarked, “words and the things they stand for are separated by mere whispers” (it’s somewhere in “Gravity’s Rainbow…hell if I’m ever going back into that sorry mess to find it). The national identity has changed, and not just in response to the overtly evil leadership of Cheney and his gang. There are an enormous number of citizens who are fully on board with the change, and pushing to change it further; way further. So I have a genuine difficulty in even accepting that there is a national identity anymore. There are remnants, for sure, anyone looking at a Trash Talk thread can see that cultural inertia is far more resilient than political fractionation. But without some shared agreement on what constitutes reality, on what the Universe really is, that inertia cannot ultimately lead to reunification.

          I suppose what bugs me the most is how 9/11 could have catalyzed such a sea change. In the context of the history of warfare, it’s just not that big of an event. Almost a decade later and half the country have still not recovered from losing their nut. The single most unifying experience for Americans in half a century and the official investigation was the shoddiest, most piss-poor, country-bumpkin piece of ass-covering in the history of the nation. Investigating a presidential blow-job got ten times the budget and thoroughness. People just didn’t want to know. Why? I can’t imagine.

          Is there any solace in looking for rational explanations? What else can one do? It’s like finding solace in breathing. I remember quite a few years back when a neighbor challenged me to engage the arguments of the Creationists (whom he insisted were making very convincing arguments). I spent most of a winter reading this crap by Philip Johnson, Michael Behe, Hank Hennegraf, and others. In the end it made no difference. I dismantled their “arguments” with great patience and forebearance, but it made not a whit of difference. My neighbor’s game was not to use evidence, or argument, to flesh out reality, but to try to bring a poor sinner to the light. By setting the trap with rational argument, and with the expectation of good faith, he caught me like a trout rising to the fly. It was just that easy for him, but really, what choice did I have? It’s like breathing…not so much for solace but just because that’s what I do because I can’t not do it.

          There is just as surely a trap in the current American political process and those who use evidence to perceive reality are going the wrong way.

        • phred says:

          I suppose what bugs me the most is how 9/11 could have catalyzed such a sea change. In the context of the history of warfare, it’s just not that big of an event. Almost a decade later and half the country have still not recovered from losing their nut. The single most unifying experience for Americans in half a century and the official investigation was the shoddiest, most piss-poor, country-bumpkin piece of ass-covering in the history of the nation. Investigating a presidential blow-job got ten times the budget and thoroughness.

          [Emphasis mine.]

          Thanks for the interesting commentary. I wanted to highlight this bit again, because I could not agree with you more. I am intensely frustrated by the manipulation and distortion of a single event that has led our country down a path so twisted that I no longer recognize who we are.

          Where I disagree with your assessment though, is I don’t think any of it is real. I think the media lens that we use to view ourselves is so distorted that we do not get an accurate picture. The people I know, both in passing and really really well, are sane ordinary Americans of the sort I have known all of my life. None of them are quivering masses of insane paranoia, and yet those are the freaks and nutjobs that are paraded before us by camera after camera.

          I am frequently reminded of the “Iraqis pulling down Saddam’s statue” a made for TV moment that did not reflect Iraqis generally. Cameras are excellent at close-up shots and narrow views, but they are not good at showing the big picture. To really fully see what is going on around you, you have to take your eye away from the view finder and look around.

          We see these made-for-TV moments repeatedly used to put forward an agenda, whether it is Glenn Beck’s delusions of being the second coming of MLK Jr., or a handful of xenophobic bigoted nutjobs with some kerosene and matches. It is the manipulation and distortion of these events that is used (along with the ever growing police state) to keep us all in line with a predetermined political outcome.

          It isn’t that the public wasn’t interested in a proper investigation of (pick your scandal, but 9-11 is as good as any), it is that it has been demonstrated to us repeatedly over the decades that those in positions of power to actually conduct those investigations do not do a thorough or honest job. So why would the public rise up and demand another pointless investigation? Why bother. You’ve got a life to live, work to do, children to raise, and the scandals pile up.

          The only venue we have to try to improve things is via the ballot box — indeed this was the very solution the founders intended for us to use to rein in abuses of power. What the founders failed to envision was the evolution of their political system towards an end so corrupt that the voters no longer had a real choice of candidates, but a mirage that only those belonging to one of two parties are “viable candidates / real choices / possible winners”, so that the public refuses en masse to vote for the only real alternatives.

          We are the ones who refuse to vote for ordinary people. So ordinary people do not run. This was a failure the founders didn’t envision. Their system was predicated on real tensions between political parties, between branches of government, and between the government and the public. We now find ourselves in a place where the political parties and the three branches no longer operate in tension, but in collusion. The public is the only force in opposition, but we believe the lie that we are told that we have no choice but to vote for those who betray us.

          And to add insult to injury, as if all this wasn’t already bad enough, the political powers that be keep trying to sell us on the notion that we need more bipartisanship (i.e., less tension) and ever more cooperation from the public so that those who rule us will no longer face any opposition at all.

        • DWBartoo says:

          phred, you and KenMuldrew have been raising the most interesting, if somewhat depressing and appalling, as well as precisely on target, assessments of our common plight.

          Perhaps it is owning to cultural ennui, yet the bemusement and capture of curiosity, that ability to step back, away from the “viewfinder” and perceive more broadly what is going on, aided by the successful assault upon education these last forty-odd years, has left us a society addicted to group thinks, of the narrowest sort, aided by the “sound-bite” mentality of the deliberate manipulators of “public” perception.

          Historically, the willingness to “stop”, as it were, the headlong rush to “achievement” (that none may be “average”), that proclivity of looking at what others cannot be moved, on their own, to see, or to ponder, has been left, in our culture, to fools, simpletons, and poets.

          The “astute” of today’s American elites have chosen, in large number, to join the manipulation, as there is gold in them thar ills, with a pure cynicism that delights in “go aheads” like, “Greed is good”, and, “Power is the ultimate aphrodisiac…”, for, as education has been made a deliberate “fail” for many, for the precious “few”, it is the key to the money and to the power.

          It is not merely “law schools” and “economics departments” which have been remiss in the quality their finished “product”, across the board, the educational “establishment” has taken over by self-interested bureaucrats and administrators, who have selected faculties which, especially at the level of “higher” education are quiescent and focused on the “politics” of advancement rather than upon inquiry or overarching philosophies of connection and consequence.

          The people, by and large, happily bought notions of “competition” when their own histories, collectively had taught, often painfully, the value of cooperation, but then, America is, as all Americans believe, exceptional, and the ill-fates, desperate circumstances, and “excesses” of other nations can (and will) never be ours.

          The ether myths of time.


        • KenMuldrew says:

          Thank you, very well said.

          Where I disagree with your assessment though, is I don’t think any of it is real. I think the media lens that we use to view ourselves is so distorted that we do not get an accurate picture.

          Actually, this is what I was trying to get at with the “what makes a nation?” line of thinking. The shared concept of what the nation is comes directly from the media. Whereas the media used to be a reflection of some abstract notion like the “will of the people”, they now are fully dedicated to creating the nation, through fabricating a national mythology and ethos. Or rather, they are dedicated to creating *a* nation, and they don’t care a toss whether they get a majority of the people on board. With a two party system, all they need is slightly more than half of one party and that’s enough to control the country. And right now they have that. If the two party system could be dismantled, I think their coalition would shatter into hundreds of irreconcilable interest groups while sane people would be far more likely to find common cause in just a few political parties. But the two party system has been effectively gamed and I really don’t see how to immunize the system from this particular parasite.

          The ballot box allows citizens to punish those who have betrayed their trust, and, less often, to place candidates whom they believe would govern with a just and dedicated spirit of finding the public good into office. But with just two choices, and those choices being decided by a very wealthy minority, only the former choice is available at the ballot box. And the replacement for one bad apple is invariably worse.

          Why bother. You’ve got a life to live, work to do, children to raise, and the scandals pile up.

          Take a look at the link in 16. All those commenters piling on the guy for his tiny act of civil disobedience. They shout him down for making their own lineup longer, as they wait to placidly submit to an act of fealty before the all-powerful customs agent. Earlier you asked what it would take for Americans to finally stop obeying these nonsensical rituals of submission. Reading the comments in that thread makes me think that it will have to get unimaginably worse to reach that point. The love of freedom and individual liberty is not nearly so dear to the American spirit as one would have hoped.

          As an aside, if anyone is interested in how special interest groups learned how to infiltrate the “free press” with up-is-down stories designed to alter the public discourse, William Boyd’s novel, Restless is very good. It’s historical fiction, but based on the documents that were released several years back on BSC and their efforts to bring the U.S. into WWII.

        • phred says:

          Thanks : )

          I read the post linked at 16, but not the comments. Clearly, I should have.

          The love of freedom and individual liberty is not nearly so dear to the American spirit as one would have hoped.

          Indeed. For all the endless repetitions of the national anthem at sporting events, there are many who don’t have even a passing notion of what “the land of the free” is about. Perhaps if we pledged allegiance to our constitution instead of our flag, it might help. Perhaps not ; )

          If there is something the American spirit appears to crave it is a desire for convenience, instant gratification, and cheap goods. The spirit craves these things so strongly, that the mind will often refuse to ponder the consequences of following those destructive impulses.

          I’m all for convenience, instant gratification, and cheap goods myself. But when convenience means I have to choose between my freedom to travel and my civil rights, I stop to think about it. When instant gratification means putting myself into permanent indebtedness to usurers, I stop to think about it. When cheap goods means underwriting unemployment at home and slave labor abroad, I stop to think about it.

          But for some, their desires outweigh their good sense or at least their willingness to consider that their actions have consequences. And that those consequences might not just be harmful to others, but seriously detrimental to themselves as well. Humans have a depressing capacity for self-destruction (whether personal or societal).

          It is funny, now that I think about it, one of my traits that the hubby finds most amusing is my intense desire to not inconvenience others. I hate holding up a line and will try to do whatever I can to avoid creating a problem thereby inconveniencing others. I mentioned this in a prior thread about not wanting to complain in a restaurant when my order gets messed up, but it goes way beyond that. When I call someone, I usually ask if I am catching them at a bad time, because I don’t want to inconvenience them. I hate asking someone for (fill in the blank) because it might put them out.

          I haven’t really given this a lot of thought before now, but it is really true for me, that inconveniencing others is a real sin. Americans have things to do, places to go, and people to see, so one best not do anything to interupt the smooth flow of getting these things done.

          No wonder those commenters were so pissed off at the uncooperative soul who refused to be interrogated. Someone dared to throw the whole streamlined (and mostly pointless) exercise off its well-greased rails, thereby impeding their rapid progress, causing them an inconvenience of being a few minutes behind schedule. I think we have mutated from being a Type A society into something newer, more obsessively demanding of speed and efficiency.

          Huh. I hadn’t really thought about this before. Thanks for giving me something new to chew on for awhile…

        • donbacon says:

          A framework: that is exactly what I am groping for. How to make sense of the irrational. It’s such an exasperating experience. Why should anyone want to insist on obvious falsehoods?

          President Obama renewed Bush’s 9/11 national emergency today, Patriot Day. Current law requires that national emergencies be renewed annually on their anniversary or they expire. Obama has renewed every Bush NE on schedule and added one for the flu.

          The US currently has not one but twenty-three (23) national emergencies. They include 22 existing ones that the Mr. Change has renewed plus one for the flu pandemic. They concern by annual date of renewal: Cote d’Ivoire, Zimbabwe, Iran, Syria, Burma, Iraq, Belarus, Western Balkans, North Korea, Russian Federation, Liberia (Charles Taylor), Lebanon, Export Control Regulations, Terrorist Attacks, Terrorism, Colombia, Democratic Republic of the Congo, H1N1 Influenza Pandemic, Sudan, Weapons of mass destruction, Iran, Middle East Terrorists and Cuba.

          There is even a second national emergency brought on by 9/11. It will undoubtedly be renewed in a week or so.

          Happy Patriot Day. Try to make sense of the irrational fact that Ivory Coast is a US national emergency.

        • donbacon says:

          As long as the political process is restricted to a two-party system, the alliance of crazies will hold power over those who respect reality.

          While true this fact is not widely understood. Nader wrote a book about it: Crashing The Party

        • bmaz says:

          The “lie” is that he claimed he is innocent. I literally think that ought to be protected speech whether it is true or not. If you are presumed innocent, you should never be charged for saying you are innocent. It is a shitbag prosecution by a bunch that is far dirtier than Clemens.

          Sotomayor has been better than I feared she might be; little chance i will be surprised by Kagan. She will vote with liberals on social cases and vote with the conservanazis on exec power cases and be all over the road on law and order and court procedure cases because she doesn’t know her ass from a hole in the ground, nor would she know what happens in a trial court if it hit her in the head.

        • BayStateLibrul says:

          In re Clemens…

          Bmaz sayeth “The “lie” is that he claimed he is innocent. I literally think that ought to be protected speech whether it is true or not. If you are presumed innocent, you should never be charged for saying you are innocent”

          Do you want to retract that statement?

          It doesn’t make any sense to me.

          Hardin’s law: “I told you I was innocent, why would I lie” Defense

          Bmaz’s law: “Never be charged for saying your innocent” Defense

          I thought the law can be wacky sometimes, but this is gonzo law…

        • bmaz says:

          I will never retract that statement. Ever. If you have a constitutional right to be presumed innocent, then you should have a constitutionally protected free speech right to say you are innocent right up until such time as you have been legally found otherwise. That is how I feel, that is how I have always felt. This type of charge is pure chickenshit, and the investigators and prosecutors on this case are chickenshit dirty assholes. Period.

        • BayStateLibrul says:

          Of course, but that’s not what you said… you said charged.

          Charges were brought, now we will have the trial…

          Charges, Discovery, trial, verdict = rule of law..

          It is what it is…

        • bmaz says:

          That is exactly what I said. The false statements he is charged with making are directly based on him claiming his innocence to House investigators (fronting for Novitsky who was actually present I think) and to Waxman’s Committee (where I know Novitsky was present).

        • bmaz says:

          There is a far difference between having the right to silence and having the right to assert your innocence. I say you have both. Courts have consistently over time more and more taken away citizens’ rights in this regard and the prevailing view now is that you can be charged for saying you are innocent if you are not. This is what happened with Clemens. Irrespective of whether you can be prosecuted for that or not, it is the most pathetically chickenshit prosecution imaginable as far as I am concerned. And the fact that the DOJ is willing to pull this shit on Clemens, but just cannot manage to do anything about the real ills of this country just about says everything. It is loathsome and low. Your view of grand juries and how they work is woefully uninformed; they will indict anything that moves generally and the evidence and presentation is entirely up to the ethical propriety of the prosecutors and investigators feeding it; there is an established problem with that in the BALCO line of cases. Fear not, you will get your precious conviction of Clemens, and yet another piece of due process propriety will slip away in the country because petty and selfinterested people in the justice system and halls of power consider their personal crusades more important than due process. And unthinking citizens egg them on. The OJ Simpson criminal case should have dismissed long before trial for police and evidentiary misconduct. It was an incredibly amazing case of just that. But an example had to be set against him so due process be damned he was prosecuted. These are the steps that destroy a justice system over time. The target, whether Clemens, Simpson or any other man, should not be more important than the system. I refuse to agree that it is; others may have no such qualms.

        • Mason says:

          Two points.
          He didn’t have to testify (voluntary).
          The Grand Jury found “probable” cause in their 2 year investigation to
          If the evidence wasn’t there, they woudn’t have moved forward…

          A Boston lawyer said long ago that a grand jury would indict a ham sandwich, if asked to do so by a prosecutor. The grand jury only needs to find probable cause to believe that a particular crime has been committed and the prosecution has no obligation to explain the crime to them, other than identify the elements, or to disclose any potential defenses or exculpatory evidence. Therefore, your comment makes no sense.

          You and bmaz appear to be arguing whether there is a difference between telling a lie, as in claiming innocence because you were at a family BBQ when the victim was murdered, but the prosecution can prove through family members that you weren’t at the BBQ, versus limiting your statement to “I am innocent.” The former is a provable false statement based on disproving the defendant’s claimed basis for innocence and it’s clearly admissible, if voluntary. The bare claim of innocence, however, is technically true because, as bmaz says, due to the presumption of innocence the defendant is innocent until the prosecution proves her guilt beyond a reasonable doubt. Therefore, I agree with bmaz. That is, I don’t believe a provably false claim that “I am innocent,” should be the basis for a criminal charge. I also believe that equivalent statements like “I didn’t do it,” or I didn’t commit a crime, fall in the same category because each statement is a denial without further explanation.

          I haven’t followed Blago’s case so I don’t know whether he said anything more than I am innocent or its functional equivalent.

          What the hell, my comment is so late that no one will probably read the damn thing anyway.

          EPU’ed again.

    • mattcarmody says:

      They were sitting with the other members of the good old boys club snickering at how easily intelligent people can be fooled along with the other rubes in this country.

  2. wigwam says:

    And Glenzilla has superb commentary on this matter this morning. Specifically, he shreds SCOTUSblog’s Tom Goldstein for his obsequious praise of every nominee and scorn for those who suggested that Kagan would suffer from the same need for recusal as the last Solicitor General to be promoted to the court, namely Thurgood Marshall.

  3. workingclass says:

    I was not aware of this. Leave it to Obama to find an oblique strategy to move the court to the right. Breathtaking in it’s simplicity. And the rubes will never know.

  4. dick c says:

    I wonder how many people really understood they would be getting a part time justice for such a critical period over the next couple of years?

    I’d wager Obama and Rahm knew. In fact, it wouldn’t surprise me if they were planning on it. This is the sort of thing there should have been more discussion about instead of time wasted debating the precise meaning of her “wise Latina” comment, or whatever in the hell that all was.

  5. dylanh says:

    Didn’t Thurgood Marshall have to recuse himself from 50% of the cases in his first term, because of his being a Solicitor General?

  6. Kassandra says:

    Great! Now we can have the same kind of gridlock in the SC that we have in the godsdamned Senate!
    I guess some weighty matters are in front of the “court’

  7. wigwam says:

    The 9th Circuit’s supremacy-of-state-secrets ruling will surely be appealed to SCOTUS, which, because of the recusal of Kagan, will almost surely deadlock, which will let that horrible ruling stand and thereby become “law of the land.” (I suspect that White House strategists planned this. To them is simply a poker game.)

    • jerryy says:

      Related OT:

      Part of the 9th circuit really stuck itself into many hornets’ nest after hornets nest with their ruling about software licenses vs ownership. This one is currently not in the MSM’s portfolio (unless you count Wired as part of the MSM, but basically the decision says software be considered as not having first sale doctrine protections, so you cannot sell it as used property unless the original manufacturer explicitly gives you permission.

      This can mean you may not be able to sell used computers in running order; that operating system is copyrighted, as is the software you ‘bought’ to run on it – which may/will lead to book publishers, movie publishers, music publishers etc. suddenly deciding that books, cds, dvds, etc. can no longer be sold as used.

      But this goes even further, if you own a car with fuel injection (just about all gas/diesel fueled vehicles currently sold in the US) you may not be able to sell it as used — fuel injection is controlled by a computer which runs on software, remember if you will, the recalls of Toyota Priuses was over software glitches.

      Even further, those new energy efficient appliances (refrigerators, etc) that connect to the smart grid and get their electricity when it is cheapest are all run by software.

      How will we be able to legally sell used furniture?

      It would be nice to have nine justices (and a decent Congress) to sort these issues out.

      • bmaz says:

        Interesting. However, I think all the possibilities you reference beyond the specific type of software in the actual case are likely not an issue. None of the other items came with a specific, limited and restricted license like the software did. In fact, automobiles for instance come with dedicated title, so this is just not a concern, and it is hard to see where it is on ant of the other extrapolated out examples.

        • jerryy says:

          There are lots of fine print possibilities out there already about not using things beyond their intended uses, (The EULA click through agreements are part of the decision if what I have read is correct and many EULA agreements have clauses saying they can update the agreement to their benefit at a later time — you must check their website periodically.) what is to stop a contract programmer hired by Ford from deciding you cannot trade your Ford in on a Chevy (when property titles were created, software did not exist much less have an ownership problem).

      • wigwam says:


        Every modern automobile has multiple computers and lots of software in it. As of a decade ago, the engine control system of a BMW involved something like 250,000 lines of software, and the average Mercedes had 70 computers.

  8. bobschacht says:

    Eleventy-dimensional chess, cont:

    Maybe it is part of the calculations that with Kagan out, the court will deadlock on the really important stuff, so that no harm will actually come to pass?

    But then, I haven’t had my first cuppa coffee yet.

    Bob in AZ

    • Hugh says:

      No, if there is a tie, then the judgment of the lower court stands. Also you have the four radically conservative justices Roberts, Scalia, Alito, and Thomas plus the increasingly radical conservative Kennedy to contend with. So you are probably looking at a bunch of 5-3 decisions. If a Stevens type justice was around, then there might be a better chance of pulling Kennedy to our side on some issues. There is also the point that a 5-3 decision of the Court will be seen as a stronger endorsement of a view than a 5-4 decision would be.

      • bobschacht says:

        No, if there is a tie, then the judgment of the lower court stands.

        Thanks for the info. But in this case, it’s not a precedent-setter, is it? That is, the lower court decision stands, but the issue may come up again without prejudice?

        Bob in AZ

        • Hugh says:

          Interesting point. bmaz might be able to tell you more. I would think that a tie would constitute precedent for the Circuit involved only. Of course, this can still have a big effect. Most national security/Gitmo cases go through the DC Circuit or the 4th Circuit. A lot of financial stuff goes through the 2nd Circuit which takes in New York.

  9. donbacon says:

    The crippling of Congress and now the SCOTUS allows for more and more and more executive privilege by a decider president. More unilateral foreign policy decisions, executive orders, etc.

    • Kassandra says:

      I bet she’ll un-recuse herself when oilbomber tells her too.
      When do we get our “permanent” president? when another terrorist attack inspired by wackos like “Pastor” Jones set off the Muslims again and whoever’s in there dusts off NSPD 51?

      • dick c says:

        When do we get our “permanent” president?

        From the way things are going it looks like we may already have our permanent Presidency. Every four years we’ll get to elect a new face for it.

  10. fwdpost says:

    Now, we can’t blame Obama if his Court appointee votes against the people, because she has gone from recluse (never married, no children) to recused, which is one “l” of a change.

    • DWBartoo says:

      Talk about lighting firecrackers at a solemn and somber moment, fwdpost.

      Ain’t you got no respect?

      Keep this sort of comment up and you are going to bust some guts hereabouts.

      :~) (Bring ’em on!)

      In point of actual fact, Obama should be applauded for “facilitating” this “change”, to the life of a lonely, striving academic, apparently without a past, as it gives lie to the loud, and unsettling, claims, especially of late, that the President has sought to change little … and changed even less.

      For those who urge the Democrats and the President to large plans and bold deeds, it should be noted that the “change” required, in the end, only a little “d” …


  11. Hugh says:

    This is a typical Obama Administration pseudo-bumblefuck. He and his cronies arrange for the worst possible outcome and then when it happens they can always say, hoocoodanode? I was wondering about this. I thought she might go the Scalia route of declaring himself impervious to conflicts of interest. But this was always out there and shows the dangers (from our point of view, an opportunity from theirs) of nominating a crony who has an official position. The pseudo nature of this screw up is because they had to know that this would happen and that this was part of their calculation. Now you might say that they might not have. Even so, that leaves the choice of possibilities between stupid dumb fucks and malicious dumb fucks.

    More and more watching the antics of this Administration, I don’t get angry anymore. I just feel sick. And it reinforces my view that a vote for either of these parties or anyone running under their banner is an endorsement of the complete and absolute corruption they represent.

  12. montanamaven says:

    Disturbing, but not surprising. Abortion was always meant to distract from a judge’s real corporate agenda. Sheldon Wolin in “Democracy Inc: Managed Democracy and the Specter of Inverted Totalitarianism” has a chapter on elitism. Inverted totalitarianism is no longer a Specter. It’s full blown.

    I found something in the midst of all this hopelessness to enjoy. It’s Tom Geoghegan’s book “Were You Born on the Wrong Continent?”. A brilliant answer to these U of Chicago flim flam ideologues and elitists.

  13. qweryous says:

    In reference to Hugh @ 48:


    A newly coined phrase?

    Direct and not subject to misinterpretation.

    Works for me.

  14. wigwam says:

    This is a typical Obama Administration pseudo-bumblefuck. He and his cronies arrange for the worst possible outcome and then when it happens they can always say, hoocoodanode? I was wondering about this. […] The pseudo nature of this screw up is because they had to know that this would happen and that this was part of their calculation. Now you might say that they might not have.

    Per Greenwald this morning:


    Those raising this concern pointed to the very high recusal rate for the last Solicitor General appointed to the Court, Thurgood Marshall. Progressives were deeply concerned about this because it would mean that they would be missing a Democratic-appointed vote on a slew of important cases, while people across the spectrum were concerned because a 4-4 vote means that lower court appellate decisions remain valid.

    Goldstein, needless to say, found such concerns utterly unfounded and unfair.


    Ed Whelan — who was the target of Goldstein’s specific ire on the recusal issue and (along with me) generally derided as nothing but a blind, raving Internet ideologue for criticizing Kagan — takes a well-deserved victory lap here.

  15. posaune says:

    Just had a worrisome thought here:
    Haven’t heard the Roberts illness rumors for a couple of months, but
    what if Kagen keeping her mitts clean is setting her up for the top job.

  16. dick c says:

    Wasn’t there some talk recently about using retired justices to fill in? Was that proposed to deal with recusals?

  17. reddflagg says:

    Kagan’s appointment is the second biggest letdown for me from Team Mediocre, after the health care debacle. Another example of what Krugman calls “Rahmism”: don’t advance anything that isn’t certain to pass. If Bush could push Roberts through Sanstesticles could have pushed Pamela Karlan through.