Archive for May, 2010

Will Elena Kagan Be The Next Supreme Court Justice?

Sunday, May 9th, 2010

According to multiple (not necessarily reliable) internet sources, President Barach Obama is set to select Elena Kagan for referral to the Senate Judiciary Committee as his choice as the next nominee as a Justice on the Supreme Court of the United States, replacing Justice John Paul Stevens. If she is nominated and confirmed it would be the first time in history that three women have sat simultaneously on the bench of the Supreme Court. She would also become the third Jewish Justice on the court currently.
On a somewhat positive note, according to an article in NPR entitled:Obama to Nominate Kagan for Supreme Court , it was noted that she had served as a Supreme Court law clerk for the late Thurgood Marshall and was a dean of the Harvard Law School. On another positive note, she seems to be sensitive to gender based discrimination. On a less positive note, there are many who feel that Elena Kagan’s record is less than stellar with respect to some basic civil liberties like the right to privacy. Glenn Greenwald of authored an article entitled: “The Case Against Elena Kagan”. The article points to some prior examples where she seemed to approve of Bush/Cheney policies which were regressive and infringed on basic human rights such as the universal right to Habeas Corpus.
Briefly skimming an Harvard Law Review paper (Vol 114, No. 8 (Jun., 2001), pp. 2245-2385) on presidential administration by Elena Kagan the document does appear to me to lean in favor of a notion that Federal departments, bureaus and agencies may be overseen and directed by the Executive rather than the Legislative branch of government except for areas of Federal Agency oversight where Congress has with specificity precluded the Executive branch from asserting such authority.
The debate over at the Huffington Post with respect to Elena Kagan as a Supreme Court Pick is raging with thousands of comments posted on the potential nomination already.
The Justice Elena Kagan would replace, John Paul Stevens, had lectured on the relationship between the liberty clause of the Declaration of Independence (”unalienable rights; that among these are life, liberty, and the pursuit of happiness.”) and the liberty clauses of the 5th and 14th Amendments to the Constitution (life, liberty and property). Justice Stevens tended to rule narrowly, restricting the scope of his opinions somewhat closely to cases similar to the one being appealed from rather than making broad declaratory rulings.
The current Supreme Court has been far too prone to subjugating the rights of individuals to the powers of government and other large corporate and organized interests. I for one will be watching closely to see what the views of the next Supreme Court nominee will be with respect to individual liberty.


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