Bruce Fein
Campaign for Liberty
June 24, 2010

kagan
Kagan will prove the flip side of retiring Justice John Paul Stevens, whose vote and voice have, for decades, arrested executive branch lawlessness.

Depend upon it! If confirmed by the United States Senate, Supreme Court nominee Elena Kagan will crown President Obama with “imperial” constitutional powers. Congress and Federal Courts will wither as checks against his presidential usurpations or abuses whenever war or other national security claims are bugled over Iran, North Korea, Yemen, international terrorism, economic adversity, or otherwise. In these matters, Kagan will prove the flip side of retiring Justice John Paul Stevens, whose vote and voice have, for decades, arrested executive branch lawlessness or encroachments on the co-equal branches of government. Stevens’ vote was decisive in a pair of recent cases invalidating both military commissions for the trial of alleged war crimes and the suspension of the Great Writ of habeas corpus for Guantanamo Bay detainees.

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Justice Robert Jackson lectured in Youngstown Sheet & Tube Co. v. Sawyer during the Korean War: “With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations.” In other words, the history of liberty is largely the history of legislative or judicial checks on assertions of executive authority. These signature earmarks of a Republic may be doomed in light of America’s seemingly prevailing psychology of Empire. But if so, the Supreme Court should be the last to surrender, which is why Kagan’s nomination must be defeated.

Kagan is a creature of the executive branch. She served as a senior legal advisor to President William Jefferson Clinton, and was appointed Solicitor General of the United States by President Obama. The latter has been styled The Tenth Justice because the Office of Solicitor General echoes the President’s constitutional views before the Supreme Court and commands substantial deference by its nine Justices. Kagan also eagerly sought appointment by President Clinton as Assistant Attorney General for the Office of Legal Counsel (OLC). Its customary mission is to manufacture theories of presidential omnipotence, which inexorably encourages intellectual scorn for Congress. I served in OLC as special assistant to the Assistant Attorney General in my salad days so I know its predisposition to exalt presidential power.

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