The Senate should reject Elena Kagan's Supreme Court nomination because she seeks to expand executive branch authority at the expense of the public's historic civil rights. Also, she is part of an Obama Department of Justice leadership team that has failed to redress unconstitutional lawbreaking by overzealous prosecutors and greedy judges.
The Justice Integrity Project (JIP), a bipartisan civil rights group I lead, announced this week our opposition to Kagan, based on our research on prosecutors and judges.
The implications of the current debate extend far beyond the politics of whether she'll be confirmed.This nominee is part of an expanding and almost unprecedented threat to our core heritage of due process, checks-and-balances and other constitutional protections.
Although this nominee is by all accounts a pleasant and brilliant person, her track record on key civil rights issues does not deserve public trust or confirmation. This is especially so given her direct involvement as DOJ solicitor general in several notorious cases advocating for more executive branch power without effective oversight.
On June 28, for example, the Court met to decide whether to concur with Kagan's request in November to deny a hearing for former Alabama Gov. Don Siegelman and former HealthSouth CEO Richard Scrushy.
Fortunately, she and the Justice Department lost.
The Court vacatedconvictions in the nation's most notorious political prosecution in memory. Also, it remanded the case to a federal appeals court for reconsideration in light of the Court's decision the previous week that the "honest services" law used by DOJ in official corruption investigations can be unconstitutionally vague.
OpEd News readers by now are well aware that Siegelman and Scrushy were out-and-out framed, not simply mistreated. Does Kagan know? Does she care?
When you see a summary of the investigative reporting below you won't be surprised that neither political party wants to get into it at a public hearing.
The Senate confirmation hearings this week fire up the base of the parties largely on hot-button cultural issues, such as gays and military recruiting at Harvard. WWF-style controversy provides the image but not reality of democracy in action. Does anyone really think the military relies for its personnel needs on recruiting Harvard Law graduates?
Meanwhile, the hearings duck issues central to the disintegration of our core constitutional protections. One is a litigant's right to an honest judge and an otherwise fair trial. Another is congressional self-abdication as an effective oversight body.
To foster reform, my group has launched a special website featuring critics of Kagan, the confirmation process and the largely unaccountable executive branch. With scant oversight, U.S. presidents increasingly lead the way on economic policies, war-making and mandatory health insurance of dubious constitutionality, as well as warrantless electronic surveillance, torture, and prosecutorial immunity from liability.
Kagan, as a close friend of president Obama, is uncomfortably close to the danger zone emphasized in Federalist Paper No. 76 in warning that the Senate needs to have an independent review process to ensure ongoing checks-and-balances.
Looking ahead, let's try to imagine how the courts will address problems created by BP's Gulf oil volcano. Will a government and corporate-owned news media that insist on calling this catastrophe a "spill" or "leak" be inclined to protect the public in other ways?
Constitution and Cover-up
Exhibit A in questioning Kagan's commitment tocivil rights is herrubber-stamp of DOJ misconduct in the Siegelman case with the November filing opposing on technical legal grounds Supreme Court review. She lost on technical grounds. So she can't even get credit for that, much less the big picture:
1 | 2