Court Commentary: Biden on Kagan

So, Joe Biden wants me to back Elana Kagan. In his note he says:

To see why, look no further than her role in the Citizens United case. It was a legal battle that most experts agreed would be impossible for the government to win. But as Solicitor General, Elena chose this as her first case. She recognized that rolling back bipartisan election law would allow special interests to dominate campaigns across the country and drown out the voice of the American people. Though she knew she'd probably lose, she chose to make it her fight all the same. That's character.

Wait, hold on a moment -- who thought Kagan was going to lose Citizens United? Since when was that case a foregone conclusion? And how does that obviate her responsibility in losing one of the landmark cases of the last year?

I don't think Obama and Biden want to make a big case of Kagan's positions as a Solicitor General. Let's take one at random: here's a recap of a case where Kagan argued that detainees at Bagram Airbase have no rights:

The U.S. Supreme Court ruling in Boumediene v Bush, which granted habeas rights to Guantanamo detainees, Kagan wrote, “rested heavily on the ‘unique status of Guantanamo’” in terms of “the nature and duration of the United States presence at the site of detention, and the practical obstacles to permitting the detainee to pursue habeas relief in United States court…”

Bagram, she wrote, “does not share the defining attributes of Guantanamo,” thus “an enemy alien apprehended and detained by the military overseas in an active war zone at the very least bears an extremely heavy burden before he may sue his captors civilly and require the federal courts to second guess the judgment of both political branches with respect to the reach of habeas jurisdiction.”

Now, whether or not the case is correctly legally argued, it returns to mind the fact that the Solicitor General's job is to basically legally argue whatever the President believes, whether it be that Bagram air-base detainees have no rights or that some detainees may be held forever.

How strange, then, to back a Solicitor General for losing a case of great importance, while defending a principle that you told her to have.

Court Commentary: Nominee to the Court

As I've said before, the Supreme Court is one of the parts of government I get most excited by (even going so far as to daydream of serving on it), so I'm watching with rapt attention to see how the replacement of John Paul Stevens plays out.

Here's my hope for what the nominee encapsulates. I'll leave out the identity politics, because that basically turns into a game of "which underrepresented minority most deserves the next seat." Also, it is funny to me that Protestant is an underrepresented minority.

Here's my qualifications:

• Trial Judge: I was shocked when I found out that Sonia Sotomayor is the only trial justice on the Supreme Court. Trial judges are often the ones dealing with trials that need the clearest and the fairest system of law. The Supreme Court has a hard time dealing with human rights -- after all, with the notable exception of Brown v. Board of Education, most advances in rights have come from the legislative (the Constitution and its amendments, the Civil Rights and Voting Rights acts, etc.) and not from the courts; the courts merely defend the rights that Congress have established. But on the issue of fair trials and the rights of the accused, the Supreme Court is the first line of defense. When it comes to our national defense and war on drugs policies, it takes a trial judge to know how the legal system works in actual practice. Whereas policymakers and voters tend to believe that criminals should be treated as criminals, trial judges remember innocent who also have to go through the same legal system, and that a legal system that is abused can hurt the innocent.
• Can't Have a Middle Name that Starts with G: Antonin G. Scalia, John G. Roberts, Stephen G. Breyer -- clearly people with the middle name G. are over-represented.
• Strongly Anti-Executive: I'm not particularly anti-executive myself -- balance in all things -- but although I don't think the court is necessarily too conservative, but it is true that although the Court is moderate in many areas, it has been pushed more strongly in the direction of a strong executive branch with the inclusion of John Roberts and Samuel Alito. Particularly in the wake of the Bush Administration,
• Southern: Regionally, it would be helpful if the nominee came from the South. The only currently serving candidate from the south is Clarence Thomas, and we all know he doesn't count:
  

  Thomas had gone 2 years and 144 cases without speaking up during oral arguments. "It is a period of unbroken silence that contrasts with the rest of the court's unceasing inquiries," the AP wrote at the time.
  

  The First, Second, Third, Seventh, and Ninth Court of Appeals are all represented on the Court, as well as the D.C. Court of Appeals. The Fourth, Fifth, Sixth, Eighth, Tenth, or Eleventh all have a different sort of background from the ones represented on the Court, and it would be useful to have some sort of representation from them.
  
  Politically, by the way, this might be a helpful as well (secondary to the judicial gains of diversity).
• Corporate-Skeptic: I don't want to say that I would select him/her to overturn a particular ruling (although I think we all know which one I would want overturned). But the general outlook should be that the Supreme Court should not simply be skeptical of the power that the federal government (and particularly the Executive Branch) can exert over individuals, but also the power that corporations have over people in realms where they are not over-ruled by the government. Net Neutrality, for instance, has a high likelyhood of sitting in front of the high court after an appeals court ruled that the FCC's net neutrality regulations are legally improper. There, the corporations show that they have a control over the information we receive, and can do so because of a difficulty in competition and a lack of transparency over the tactic.

I'm sure there are other important things to look for in a nominee, but those are the things that stick out to me.

Court Commentary:Citizens United v. Federal Election Commission

A brief juxtaposition. Here's Matthew Yglesisas on the campaign finance ruling that just came down in Citizens United v. Federal Election Commission, which basically said that because corporations are people (an idea with its own fascinating court history), there should be no limit on their campaign spending:

Something worth mentioning in the context of the Citizens United decision, though not directly tied to the issue at hand there, is that a group doesn’t actually need to spend vast sums of money to have a decisive influence on politics. It just needs to be able to credibly threaten to spend said sums. Bank of America, for example, dedicates $2.3 billion to marketing in 2008 so it’s clear that they’ve got the budget to mount a $100 million series of scathing attacks on a Senator who pisses them off and basically laugh that off (and note that in 2004 total spending on Senate campaigns was just $400 million). And if you can have it be the case that just one Senator goes down to defeat for having pissed off BofA then everyone else will learn the lesson and avoid pissing them off in the future. You don’t need to actually sustain that volume of campaign spending.

Here's a quote from Anne Bogart (h/t Monica Reida) about Athol Fugard and his views on censorship:

Athol Fugard, the South African playwright, described censorship as hesitation. For him censorship is not necessarily the proximity of government inspectors or a threat of imprisonment but, rather, on the physical hesitation of his hand while writing. Censorship is his own private vacillation provoked by whatever doubts are out to ambush him. Censorship is a physical hesitation in the light of fleeting thought or doubt about how his peers might receive what he is writing, whether or not they will like it or if it will be published.

Two writers writing in different contexts about the same phenomenon. I think both of them speak to the heart of why this case sincerely disappointed me.