COMMENTARY:

Next Supreme Court Justice to Solidify Right Wing, Neoliberal Control

by Stephen Lendman
Friday, 16 April 2010
America needs no more Scalias, Alitos or Kennedys. It needs another Thurgood Marshall, William Brennan or William O. Douglas, more then to follow. Instead, Obama will likely shift today's extremist Court even further to the right.

On April 9, Justice John Paul Stevens delivered a letter to President Obama stating:

"Having concluded that it would be in the best interests of the Court to have my successor appointed and confirmed well in advance of the commencement of the Court's next Term, I shall retire from regular active service as an Associate Justice."

NBC anchor Brian Williams called him a "liberal lion," a "lawyer's lawyer." UPI's Michael Kirkland said he led the Court's "four-member liberal bloc." AP's Mark Sherman and Calvin Woodward said he "carved a liberal legacy on the high court." Clinton's acting Solicitor General, Walter Dellinger, called him "the Chief Justice of the Liberal Supreme Court." Writing in The New Yorker, Jeffrey Toobin said he was a "liberal leader (who's) views suggest a sensibility more than a philosophy."

Others remember him both ways:

In a 2007 interview, Stevens told journalist Jeffrey Rosen he hasn't changed much since his 1975 appointment, saying:

"I don't think of myself as a liberal at all. I think as part of my general politics, I'm pretty darn conservative." His judicial hero is Supreme Court Justice Potter Stewart, Republican centrist and fellow "judicial conservative."

Potential Successor Candidates

Some observers believe Solicitor General Elena Kagan is the leading contender. Educated at Harvard Law School, she then clerked for Justice Thurgood Marshall, followed by several years in private practice after which she taught law at the University of Chicago. In 1995, she became Clinton's associate counsel, then deputy assistant for domestic policy and deputy director of the Domestic Policy Council. Clinton nominated her to the US Court of Appeals for the District of Columbia Circuit, but no confirmation hearing followed. In 1999, she taught at Harvard Law School, then, in 2003, university President Larry Summers appointed her dean, a position she held until confirmed Solicitor General in 2009.

As the president's chief lawyer before the High Court, she's well known as the "Tenth Justice." In 2009, she was a finalist to replace Justice David Souter, leading some to believe she's top choice now to succeed Stevens.

On April 12, University of Illinois Law Professor Francis Boyle said the following:

"As dean of the Harvard Law School, Kagan hired Bush's outgoing director of the Office of Legal Counsel, Jack Goldsmith, as a law professor. Goldsmith is regarded by myself and many others in the field as a war criminal. He wrote some of the memos that attempted to make violations of the Geneva Conventions appear legal. Kagan actually bragged about 'how proud' she was to have hired Goldsmith after one of his criminal Department of Justice memoranda was written up in the Washington Post."

Boyle added more:

Five current Supreme Court justices are Federalist Society members: Chief Justice John Roberts, Antonin Scalia, Samuel Alito, Anthony Kennedy, and Clarence Thomas.

During her Solicitor General confirmation hearing, she supported the Bush administration's world as a "battlefield" notion, war a proper legal framework for dealing with terrorism, and indefinitely detaining anyone called an "enemy combatant," no matter its violation of constitutional and international law protections, or as Boyle explained in his June 8, 2007 article titled, ''Unlawful Enemy Combatants and the International Criminal Court:"

This "World War II era legal category of dubious provenance....is long-defunct," yet Bush and Obama still use it - the term changed to "unprivileged enemy belligerents" under Section 1031 (the 2009 Military Commissions Act) of the FY 2010 Defense Authorization Act.

For Boyle, it's a "quasi-category to create an anti-matter universe of legal nihilism where human beings (including US citizens) can be disappeared, detained incommunicado, denied access to attorneys and regular courts, tried by kangaroo courts, executed, tortured, assassinated and subjected to numerous other manifestations of State Terrorism," all of which the current High Court, Congress, Obama administration, and both major parties endorse.

No wonder Texas A & M's Bush School of Government and Public Service Professor William F. West called Kagan "a fan of presidential power," the "unitary executive" kind under Bush and now Obama.

Himself a Harvard Law grad and Ph.D in political science, Boyle wrote twice about "Harvard's Gitmo Kangaroo Law School: The School for Torturers," most recently on April 1. At least five of its professors advocate torture and war crimes, including:

In his June 17, 2008 version of the above article, Boyle accused Harvard law professors and deans of "no longer (being) fit to educate Lawyers, Members of the Bar, and Officers of the Court....Harvard is to Law School as Torture is to Law. The Harvard Law School Faculty and Deans torture the Law. Do not send your children or students to Harvard Law School where they will grow up to become racist war criminals! Harvard Law School is a Neo-Con cesspool."

And now perhaps one of their own, former professor and dean Elena Kagan, may replace John Paul Stevens, shifting the Court further to the right by subverting justice and democratic freedoms in favor of privilege.

Court Over Constitution

On February 27, this writer's article, titled "America's Supremes: Court Over Constitution" said the following:

In all three branches of government, "America was always ruled by men, not laws, who lie, connive, misinterpret, and pretty much do what they want for their own self-interest and powerful constituents. (Like today), In 1787, "the people" who mattered most were elitists. The American revolution substituted new management for old. Everything changed but stayed the same under:"

Other Potential Choices

Merrick B. Garland, Judge on the US Circuit Court of Appeals for the District of Columbia Circuit and Harvard Law grad. He then clerked for Supreme Court Justice William Brennan, briefly served as a Special Assistant US Attorney General before entering private practice, during which time he also worked as an Assistant US Attorney for the District of Columbia. In 1993, he became Deputy Assistant Attorney General in the DOJ's criminal division, and in 1994 principal Associate Deputy US Attorney General.

Called a moderate, he wasn't a finalist in 2009 to replace Souter. Conservatives may support him. Liberals may object, but both sides have other preferred choices. In their April 10 Slate.com article headlined, "Who Should Replace Justice Stevens," Emily Bazelon and Dahlia Lithwick named Garland, Kagan and Judge Diane Wood as the frontrunners, then listed other possibilities, some familiar, others less known.

In his April 10 article titled, "Justice John Paul Stevens announces his retirement from the Supreme Court," Washington Post writer Robert Barnes quoted Alliance for Justice's Nan Aron saying:

"Republicans will oppose any nominee sent up by the president. This is already a court that's tilted in favor of large corporations and special interests. Justice Stevens' replacement ought to be a person who understands how decisions affect the rights of everyday Americans."

On April 9, the Alliance for Justice web site praised Stevens' "Historic Legacy of Championing Constitutional Values....his distinctive voice will be greatly missed," and not likely replaced by his successor.

Diane P. Wood, Judge on the 7th US Circuit Court of Appeals in Chicago and University of Texas School of Law grad. She then clerked for Supreme Court Justice Harry Blackmun, worked as a lawyer-advisor in the State Department's Office of Legal Advisor before entering private practice. She also taught law at Georgetown University and the University of Chicago where she was also associate dean. During the Reagan administration, she served as special assistant to the Associate Attorney General, and as the Antitrust Division's Deputy Assistant Attorney General for international, appellate and policy matters under Clinton before becoming a federal judge.

In his May 2009 New Republic article headlined, "Good Wood," Jeffrey Rosen called her "The second coming of Ruth Bader Ginsburg," quoting University of Chicago's "libertarian scholar" Richard Epstein saying:

"She has an ideal judicial temperament," admired by "her colleagues, her clerks, and the lawyers who practice before her....open to argument on all questions, and the lawyers who appear before her know they will get a respectful hearing. She is theoretically rigorous but nondogmatic. I think that her nomination should be greeted with acclamation by Democrats and Republicans alike."

Perhaps the former, not the latter if the National Review's Ed Whelan ("bench memos," May 22, 2009) comment is indicative, calling Wood "a hard-Left judicial activist and aggressor on culture-war issues." More saying she's "ready to invent a constitutional right to same-sex marriage....believes (including) 'under God' in the Pledge of Allegiance violates" the Constitution's Establishment Clause, (stating "Congress shall make no law respecting an establishment of religion"), is "more extreme" than other judges on abortion, and aggressively pursues "her ideological agenda."

Other Names Mentioned

America needs no more Scalias, Alitos or Kennedys. It needs another Thurgood Marshall, William Brennan or William O. Douglas, more then to follow. Instead, Obama will likely shift today's extremist Court even further to the right, for sure if Elena Kagan is appointed or others with similar credentials.


Stephen Lendman

Stephen Lendman lives in Chicago and can be reached at lendmanstephen@sbcglobal.net. His blog is sjlendman.blogspot.com.

Listen to Lendman's cutting-edge discussions with distinguished guests on the Progressive Radio News Hour on the Progressive Radio Network Thursdays at 10AM US Central time and Saturdays and Sundays at noon. All programs are archived for easy listening.

Mr. Lendman's stories are republished in the Baltimore Chronicle with permission of the author.



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This story was published on April 16, 2010.