Monday, May 10, 2010


The biggest complaint about Elena Kagan among lefties (and genuine libertarians) is that she's overly deferential to state power. But now we have this from NPR's Nina Totenberg:

Hidden in plain sight, though, is a letter Kagan signed that neither liberals nor conservatives have commented on, though it is part of the public record.

In a 2005 letter to Sen. Patrick Leahy (D-VT), Kagan and three other deans of major American law schools wrote to oppose legislation proposed by Sen. Lindsey Graham (R-SC) to strip the courts of the power to review the detention practices, treatment and adjudications of guilt and punishment for detainees at Guantanamo Bay, Cuba.

"To put this most pointedly," the letter said, "were the Graham amendment to become law, a person suspected of being a member of al-Qaeda could be arrested, transferred to Guantanamo, detained indefinitely ... subjected to inhumane treatment, tried before a military commission and sentenced to death without any express authorization from Congress and without review by any independent federal court. The American form of government was established precisely to prevent this kind of unreviewable exercise of power over the lives of individuals. "

"When dictatorships have passed" similar laws, said the deans, "our government has rightly challenged such acts as fundamentally lawless. The same standard should apply to our own government."

As Adam Serwer notes, she was one of only four signers of this letter -- "so it's not as though Kagan would have gone unnoticed in a sea of other names."

Adam says:

You also gotta wonder ... given that much of the liberal criticism of Kagan has centered around this issue, why wasn't the White House passing this letter around?

I'll answer that: because the White House assumes, probably correctly, that criticism of Kagan from the left makes it much easier to confirm her -- nobody in the political mainstream (pols ot the press) cares what we think, except to the extent that if we're yelling about it, they assume that being on the other side must be the reasonable point of view.

And now, if we start holding our fire, she's probably going to have a tougher confirmation battle -- because, after all, if righties are yelling about something, their concerns have to be taken very, very seriously. Ask any mainstream pundit. Ask any Democratic senator from a non-coastal state.

And righties are sitting up and taking notice of this -- already at the Daily Caller we have "Supreme Court Nominee Elena Kagan Compared Republican Terrorism Proposal to 'Dictatorships,'" and that instantly got a link at Fox Nation (in a multi-story thread titled "Kagan Booted Recruiters, Linked GOP Terror Proposal to 'Dictatorships,' Wrote Thesis on Socialism" -- oh, and please note that the thesis is being cited, as I've been predicting).

It's Rupert Murdoch's country and we just live in it, so I think we're not going to split the difference and say Kagan has angered both left and right on issues of state power. I think this hurts her. I think the McCain/Lieberman/Graham joint press conference opposing her nomination is probably only days away.

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