Elena Kagan Will Be The Most Unqualified Justice In History

NBC News is reporting Elena Kagan is Barack Obama’s nominee to replace the liberal lion, Justice John Paul Stevens. Kagan is a remarkably poor choice.The stunning lack of curiosity and involvement in the important legal issues of her age, not to mention the law itself, and remarkable absence of compelling written work and record on the part of Elena Kagan has been previously covered in detail by Glenn Greenwald.

I have previously explained the total lack of any experience – ever – of any kind – on Kagan’s part in the court system of the United States. Kagan has never set foot as an attorney of record into a trial courtroom in the United States, not even a small claims justice court; nor for that matter, any appellate court save for the literally handful of spoon fed cases she suddenly worked on as Solicitor General. Kagan has never been a judge in any courtroom, of any court, in the United States. Quite frankly, there is not even any evidence Elena Kagan has sat as a judge for a law school moot court exercise. I have had paralegals and secretaries with better experience than this. Does a nominee for the Supreme Court have to be Gerry Spence, Pat Fitzgerald or David Boies? No, but it would be nice if they had the passion, curiosity and commitment to their profession to go to court at least once. Never has there been a United States Supreme Court Justice with such a complete lack of involvement in the court system. Never.

Duke Law Professor Guy-Uriel Charles has damningly demonstrated a Kagan record of lily white hiring, and corresponding shunning of people of color, at Harvard Law under her guidance that, if considered under the seminal Batson standard of prejudice, would have netted Kagan a sanction from the court and a potential misconduct referral to the appropriate bar authority.

Curiously, and very notably, the only pushback by an Obama Administration, who has consistently gone beyond the call of duty in protecting and bucking up a patently poor nominee in Elena Kagan, has been on the racial hiring component exposed by Professor Charles. Here are the “talking points” memo the Obama Administration sent around to its acolytes and stenographic mouthpieces in the press and internet ether to counter the substantive criticism of Elena Kagan.

Notice anything missing in the official Obama White House talking points? I do. They are solely focused on the racial exclusion charge (and here is the response eating their lunch on that). Did you see what is NOT responded to, or addressed, in any way, shape or form by the White House? If you guessed “Elena Kagan’s complete lack of any record whatsoever of participation or accomplishment in the legal process of the United States”, take a bow, you are Read more

A Concurrence In The Case Against Elena Kagan

Last week Glenn Greenwald penned a solid case delineating why current Solicitor General Elena Kagan, who is at the top of the purported Obama “short list”, would make a poor nominee to replace the retiring Justice John Paul Stevens on the Supreme Court. Despite the hard truth in Greenwald’s facts and arguments, he has been blistered by both the Obama Administration and their apologists and fanboys. The Administration has, as reported by Sam Stein, even enlisted a hit team of loyalist flaks and supporters to discredit Greenwald and his article.

The reason the White House finds itself in the position of fighting off its own base in the first place is because Greenwald is dead on the money with his analysis, criticism and conclusion that Kagan is a poor nominee; and especially considering it is Stevens’ critical seat she would be filling. Glenn’s facts and argument speak for themselves, but there is an additional area neither he, nor anyone else, has substantively touched on which militates against Kagan. Elena Kagan is so terminally inexperienced with the American court system as to be unqualified to serve on the Supreme Court.

I appeared in three different courthouses last Friday. Which is two more than Elena Kagan has appeared in as either an attorney or judge during her entire legal career. Her first appearance in the Supreme Court as Solicitor General, little more than six months ago, was the first time she had substantively appeared in any court. Ever. You can still count her total number of live court experiences (all appellate arguments) on one hand. The complete absence of experience and seasoning showed in several key areas in Kagan’s uneven oral argument presentations, and the claim Kagan is some kind of wonderful talent who necessarily would bring diverse Supreme Court justices together exposed as unsupported fawning fantasy.

The American trial court system is literally the backbone of our rule of law; they are where the public substantively interacts with the law and their law is meted out, as well as being where the foundation and record for appellate cases and controversies are made and perfected. How is it appropriate to be considering a woman for a position that will impact evidentiary, procedural and substantive trial processes – for every trial court in the country; federal, state and local – when she has never been in one? There are forty Justices in the long and glorious history of the Supreme Court who had no prior judicial experience; there are none I am aware of who had the nearly complete absence of any practical legal court experience as an attorney, much less as a judge, such as is the case with Elena Kagan. Read more

Wood v. Kagan on Executive Power

In his book, Takeover, Charlie Savage argued that the true unifying theme behind Bush’s SCOTUS picks (including Harriet Miers, had she survived) was strong support for executive power. So not only did Bush expand executive power with his signing statements, he did so even more by packing SCOTUS with Justices who would vote to support this expansive view of executive power.

Appropriately, then, Savage has a review of Obama’s top contenders to replace Justice Souter in those same terms: what have the candidates said about executive power?

While he suggests there is little to indicate how Sonia Sotomayor, Jennifer Granholm, and Janet Napolitano would rule on executive power (aside from the fact that the latter two have themselves been executives), he does map out a clear difference between Diane Wood and Elena Kagan:

But in a 2003 essay, [Wood] warned that steps proposed in the fight against terrorism, like diminishing privacy to facilitate executive surveillance, posed a threat to the rule of law.

“In a democracy, those responsible for national security (principally, of course, the executive branch) must do more than say ‘trust us, we know best’ when they are proposing significant intrusions on liberties protected by the Constitution,” she wrote.

And in a lecture about legal issues related to natural disasters, published in 2008, Judge Wood suggested that she would view trying terrorism suspects in military commissions, as Mr. Obama has proposed, with suspicion.


Ms. Kagan’s history, by contrast, suggests a greater sympathy for executive interests.


Later, in her solicitor general confirmation hearing, Ms. Kagan said the president had the authority to indefinitely detain, without a trial, someone suspected of helping to finance Al Qaeda.

She also said that she, like any solicitor general, would not defend a statute that “infringes directly on the powers of the president,” because “there are occasional times where presidential power still exists, even if Congress says otherwise.” But, she added, that category was “exceedingly narrow.”

There’s more there, so click through to read the whole thing. This is one of the most useful articles I’ve read on the whole SCOTUS search, because it really does point to an area where even moderate Democrats like Kagan could have a devastating effect on our Constitution going forward. Obama has already proven a little too fond of executive power for my taste. Let’s hope he doesn’t institutionalize that with his choice for SCOTUS.

Obama's DOJ Nominees through the Lens of Bush's OLC

Obama just announced several new nominations for DOJ. I thought I’d look at the two most notable appointments from the perspective of their response to Bush’s DOJ.

As expected, Obama nominated Elena Kagan to be Solicitor General, in what is almost certainly a stepping stone to a SCOTUS appointment for her.

Kagan, as Dean of Harvard Law School, is the person who hired Jack Goldsmith after he left Bush’s DOJ. Here’s what Kagan had to say about that appointment. 

 "Jack Goldsmith is a bold and creative thinker whose scholarship and teaching will enrich the Law School immeasurably," said Kagan. "His talents and energy will help to ensure that Harvard remains the premiere place to study international and comparative law."

Now, I’m not entirely opposed to hiring people like Goldsmith in academia; my sense is his scholarship–unlike that of John Yoo–is at least internally consistent, even if I disagree with it. One wonders, though, whether Kagan thought she was getting someone who approved of Bush’s torture and wiretapping, or someone who disapproved of it?

Dawn Johnsen, whom Obama has appointed to head OLC, has been much more critical of Bush’s own OLC. After the Yoo memo was leaked in 2004, she was one of a number of former OLC lawyers who signed the Principles to Guide the Office of Legal Counsel, an attempt to prevent similar misuses of the OLC advisory process. More recently, Johnsen testified before Russ Feingold’s "Secret Law" hearing. Here’s her criticism of the way the Bush Administration used secrecy to bypass statute:

The Bush Administration has not complied with this public notice standard and has operated in extraordinary secrecy, generally and with regard to its interrogation policy. Again, the Administration kept secret OLC’s determination that the President had the constitutional authority to violate a federal statutory ban on torture, in an opinion that did not evaluate Congress’s competing constitutional authorities or the most relevant Supreme Court precedent. The public learned of this determination only through a leak almost two years after OLC issued its written opinion and after the Administration began engaging in unlawful interrogations.

Rather than acknowledge it is asserting the authority to act contrary to a federal statute, the Bush Administration often claims it is simply “interpreting” the statutory provision—sometimes inconsistent with the best reading of the text and legislative intent—to avoid a conflict with the Administration’s expansive view of the President’s powers. The Administration cites for support to the Read more