May 14 2010

Glenn Greenwald and Marjorie Cohn on the Elena Kagan nomination


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This week on CounterSpin: Barack Obama has announced his pick for Supreme Court justice—former Harvard Law School dean and Solicitor General Elena Kagan. And the media debates have begun: about her record, her credentials and her likely impact on the court. We’ll sort through some of what you’re hearing and perhaps what you aren’t hearing in a conversation with court watchers Glenn Greenwald, of and author and law professor Marjorie Cohn.

That’s coming up but first, as usual, we’ll take a look back at the week’s press.

—With a story like the ongoing environmental disaster in the Gulf of Mexico, the media provide regular updates along with, one hopes, some broader context. One question much on people’s minds right now is just how often these kinds of accidents happen—an especially critical and timely question given the White House’s support for expanding offshore oil drilling.

Time magazine answered that question in a short item in the May 10 issue, with the headline: “Offshore-Drilling Disasters: Rare But Deadly.” And they sure are rare, according to Time—the chart lists just four incidents, anywhere in the world, ever. But it doesn’t take too much research to turn up a slew of other incidents that raise concerns—the Unocal-owned Seacrest drillship that capsized in 1989, killing 91 people, Phillips Petroleum’s Alexander Kielland rig that collapsed in 1980, killing 123, and more. A previous Time story had noted that the Minerals Management Service, which oversees offshore drilling, reported 39 fires or explosions in the first five months of 2009 alone; though the magazine said the “good news” is that “most of these” did not result in death. Clearly there are different ways to measure such things, but it’s hard not to feel that Time‘s point was to suggest that drilling disasters are really too rare to worry about.

—A May 9 New York Times story explained how hedge fund managers have become prominent cheerleaders for charter schools in New York, in the paper’s words “contributing generously to lawmakers in hopes of creating a friendlier climate” for charters, and mounting a multimillion dollar campaign to lobby for increasing the number of them allowed in the state.

To read the Times, the attraction is philosophical: “Money managers are drawn to the businesslike way in which many charter schools are run; their focus on results.” They elsewhere point to charters’ “ideological roots” in a “free-market model of education,” which is kind of curious, given that they’re taxpayer-subsidized.

There may be more (shall we say) concrete reasons for the attraction, but as David Dayden of the blog Firedoglake pointed out, you have to go outside the Times to find them. In the May 7 Daily News, columnist Juan Gonzalez reported that wealthy investors and major banks have been making windfall profits by using a little-known federal tax break to finance new charter-school construction. Seems there’s a program where a bank or private equity firm that lends money to a nonprofit to build a charter school can get a 39 percent federal tax credit over seven years. Combined with other credits and the interest on the loan, these lenders can almost double their investment in that 7 year period. As Gonzalez reported though, it doesn’t always work out so well for the schools; he found many straining to pay escalating rents going to service the debts incurred in their construction, leaving them less to spend on students. Why doesn’t this raise more eyebrows? Well, for that you can go back to the Times and the story about how financiers just seem to want to spend a lot of money on the issue.

PBS debuted the public affairs show Need to Know last week, and judging by the comments on the show’s website and those published by PBS ombud Michael Getler, no champagne was popped. One of those who hated Need to Know was Washington Post critic Tom Shales. His May 11 report called it a “monstrosity” and “a specious wheeze.” Where Shales broke with other critics though, was in the special scorn he reserved for show co-host Alison Stewart. Responding to the show’s fawning interview with Bill Clinton, Shales wrote that “she looked as though she would have been much more comfortable in Clinton’s lap.” And now we’re all uncomfortable.

But that would be just the latest unseemly peek into Shales’ mind. When ABC announced that they had hired CNN‘s Christiane Amanpour to be host of the Sunday morning show This Week, Shales was upset, about her lack of inside-the-Beltway credentials for one thing (he thinks that’s a bad thing) but also about her appearance. In a Post web chat, Shales wrote: “And neither you nor I has stooped to mentioning that hair of hers—yipe. What’s the deal with that, as David Letterman might say.” And yipe, you might say, to learn the Post critic’s criteria for journalistic merit. But then what do you expect from a guy who once started a column about CBS News anchor Katie Couric, “How about a big hand for the little lady?”

—Need to Know’s host is Newsweek editor Jon Meacham, who recently described the up-for-sale magazine, presumably with a straight face, as a “catcher in the rye standing between democracy and the abyss of ignorance and despair.” Boston Globe columnist Alex Beam worked at Newsweek years ago; he remembers it somewhat differently. In his May 11 column, Beam writes that his job as editorial assistant/fact-checker, with duties “analogous to those of an 18th-century cabin boy in the Royal Navy,” left him

bleakly cynical about journalistic accuracy. We would publish whole stories that were lies—Francois Mitterrand’s plan to destroy the French economy was a recurring theme—but at least the names were spelled correctly. Two Ts, two Rs. I will never forget.

Beam also describes 1970s-era Newsweek‘s big mission as “refighting the Cold War”, which often relied on the work of anti-Communist crusader and future editor of the Washington Times, Arnaud de Borchgrave. Writes Beam, “Everyone laughed at de Borchgrave’s copy, but we printed it anyway.” And he adds: “Those decisions were made well above my pay grade.” It’s easy to imagine that those making those decisions saw themselves also as catchers in the rye.

—And finally, it was right on the front page of the Washington Post‘s metro section on May 10, but it could have come out of the awkward and racist 1970s discussions of so-called “white flight.” Except that instead of referring to cities, in this case the Washington Post was addressing the suburbs, in a report on their changing demographics.

Reporter Carol Morrello could have saved some words by just writing “There goes the neighborhood,” but the way she actually put it was equally awful:

Ozzie and Harriet, R.I.P.. The idealized vision of suburbia as a homogeneous landscape of prosperity built around the nuclear family took another hit over the past decade, as suburbs became home to poor people, immigrants, minorities, senior citizens and households with no children, according to a Brookings Institution report to be released Sunday.

As the blogger Atrios remarked about the Washington Post staff, “Nobody noticed what’s wrong with this paragraph?”


CounterSpin: The nomination of Elena Kagan to replace retiring Supreme Court justice John Paul Stevens has sparked the expected mainstream debate about whether she is the harmless, anodyne centrist that the Democratic White House spinners would have us believe, or the wild-eyed leftist firebrand that right-wing commentators insist she is. While not as prominent as these other two positions, progressive critiques of Kagan’s qualifications and views, such as they are known, have also gotten some traction in the mainstream media discussion of Kagan’s nomination.

Joining us to share more of that critique and some thoughts on the media debate, are two of the most illustrious progressive observers of the Supreme Court. Both of course are former CounterSpin guests.

Marjorie Cohn is a professor of law at the Thomas Jefferson School of Law and former president of the National Lawyers Guild. Cohn’s books include Cowboy Republic: Six Ways the Bush Gang Has Defied the Law and the forthcoming The United States and Torture: Interrogation, Incarceration and Abuse.

Glenn Greenwald is a former constitutional law and civil rights litigator in New York and the author of How Would a Patriot Act?, A Tragic Legacy and his latest in 2008 Great American Hypocrites. He is also the Unclaimed Territory blogger for

Marjorie Cohn and Glenn Greenwald, welcome back to CounterSpin to both of you!

Marjorie Cohn: My pleasure, Steve.

Glenn Greenwald: Great to be back.

CS: Well, just about all parties to the Kagan debate agree that the public record of her views is fairly thin, so we’re left with going over what record there is with a fine tooth comb. Along those lines a New York Times story today, May 13, discusses Kagan’s clerkship for Supreme Court Justice Thurgood Marshall. That she once clerked for Marshall, perhaps the court’s most progressive justice ever, might have given heart to progressives, but the Times reports that she was often at odds with her boss. Marjorie Cohn, am I wrong to say that this piece sheds some light on some of the same concerns you have about Kagan, in writing that she would move the court rightward?

MC: Yes, indeed. When Thurgood Marshall was dissenting in an opinion where the majority said that school districts could charge poor families for busing a child to the nearest school 16 miles away, and Thurgood Marshall asked Elena Kagan, his law clerk, to draft the first draft of his dissent, she had a real hard time. She did not agree with him, and he sent it back for repeated drafts, and she couldn’t do it. And she said that he allowed his personal experiences and the knowledge of suffering and deprivation gained from those experiences to guide him. Well, I seem to remember before or when Obama nominated Sotomayor for the last vacancy on the Supreme Court, he talked about empathy and how he thought it was important for the justice to have empathy for people and what they were going through. And that was seized upon during the confirmation hearings by the Republicans as being a negative. My feeling is that if a justice doesn’t have empathy, how can that justice relate the law to real people’s struggles that they go through. And this is very, very concerning to me that—and this is from her own memos—that she disagreed with Marshall on many, many issues and had a hard time following his lead and doing what he asked her to do, which is the job of a law clerk.

GG: If I could just add a couple thoughts to the whole Kagan-Marshall relationship: I think it really illustrates just how weak is the case in favor of Elena Kagan, that advocates for her have to point to the judge for whom she clerked 20 years ago when out of law school, as though his greatness and progressive credentials should rub off on her by virtue of the fact that she clerked for him. There’s oftentimes a very divergent ideology between a judge and the person who clerks for him, Supreme Court clerkships are extremely competitive and difficult to obtain. People take whatever clerkships they can get. Larry Lessig, who’s a well-known legal scholar at Harvard and has been one of Elena Kagan’s most outspoken proponents, clerked for Justice Scalia. There’s oftentimes no relationship between the clerk’s ideology and the judge’s. On top of that, I find it unbelievably ironic that anybody would think to compare Elena Kagan to Thurgood Marshall in any way, shape, or form given that, to me, they’re polar opposites. Because Thurgood Marshall, before he went on the bench, had an extremely courageous and principled career as an outspoken advocate for civil rights and put himself on the line repeatedly to take controversial positions in order to advance that cause. Elena Kagan has had exactly the opposite life. She’s never taken a principled decision on anything outside of some sort of meek opposition to Don’t Ask, Don’t Tell, which she did in a very no-cost way. And there’s almost nothing you can look at in her record to enable one to know where she is going to fall on the great questions of the day. So to me they’re really opposites, and the comparison to Marshall underscores her great weakness.

CS: Marjorie Cohn, tell us more about other things that make you concerned that she will move the court to the right.

MC: Yes, during her confirmation hearing to be solicitor general, Kagan agreed with Republican Senator Lindsey Graham that we are at war—and this War on Terror is a misnomer: terrorism is a tactic, it’s not an enemy; you don’t declare war on a tactic—and she agreed with him that the whole world is a battlefield and that detainees could be held indefinitely, in other words: forever, in a war without end. That’s very, very concerning to me. In addition, another thing she said at her confirmation hearing to be solicitor general is “the Constitution generally imposes limitations on government rather than establishes affirmative rights and thus has what might be thought of as a libertarian slant. I fully accept this traditional understanding.” Well, the Constitution is full of affirmative rights: there’s a right to a jury trial, there’s a right to counsel, there’s a right to petition the government, there’s a right to a fair trial. There are all kinds of affirmative rights, and not only did she say that, which has not been discussed much in the media, Kagan also has said that there’s no Constitutional right to same-sex marriage, and she urged President Clinton to ban late-term abortions. So I think that progressives should be very, very concerned about this nomination.

CS: One of the talking points recited endlessly is that as dean of Harvard Law she “diversified” the faculty. I’d like you to talk about that, but I’d also like to toss in another question, and that is: Kagan’s position on military recruiters at Harvard has received an enormous amount of media attention, thanks to the right’s inaccurate claims that she “kicked the military off campus.” She actually took a rather moderate position on this. But I want to start with Glenn. If you could comment on what you have called, I think, the White House’s war room. You’ve said that they’re out there in the media conducting a media campaign to counter critics like you, and Marjorie, and professor Campos, and others.

GG: Well, there’s no question they’ve done that. In fact, one of the things I thought was interesting was before the Kagan selection was announced, it was reported by Sam Stein at the Huffington Post, who has very good White House sources, that the White House was actively soliciting progressives to respond to critics such as myself and others and to defend Kagan because no one had been doing so. So there was clearly a concerted effort on the part of the White House to create a coordinated media campaign designed to create defenders of Elena Kagan where none had previously existed. Now let me just address the one issue about Harvard and her hiring record there because that has been touted as one of her principle selling points and I just have a few quick things to say about that. One is that it is true that she hired a lot of right-wing professors at Harvard. I don’t necessarily have a problem with that; I think ideological diversity on faculties is a perfectly legitimate objective.

CS: Sure.

GG: Although she hired some questionable Bush lawyers such as Jack Goldsmith. But I mean I’ll go ahead and concede the point that that’s something legitimate, but the idea that hiring conservative professors and making the right wing on Harvard’s campus love you is somehow indicative of an ability to craft judicial opinions so as to attract conservative justices to join your side and create court majorities—that’s the claim being made for her—is ludicrous. I mean, hiring right-wing professors is a simple skill. Crafting legal opinions to get conservative professors to sign on is a very complex skill, and she’s evinced no ability of any kind to do any such thing, unlike some of the people who were named as alternatives. And the more disturbing aspect of that is that it’s amazing to call her hiring record one of diversity because the reality is, as numerous minority law professors have objected, her hiring record was incredibly non-diverse. She had 30 professors who received tenure or tenure-track positions while she was Dean—29 of the 30 were white, and 23 of the 30 where white males. And these professors have condemned that record as “abysmal” and “inexcusable”—those are direct quotes. So it was diverse in the sense that she hired some conservatives but very undiverse in the sense that progressives always said they value.

CS: Marjorie Cohn?

MC: Yes, I agree with Glenn and it’s worrisome to me. She hasn’t been a judge, and that doesn’t disqualify her. She has hardly practiced law—she went from clerking for judges to arguing in the Supreme Court as solicitor general, with some government and academic experience in between. And evidently the first time she ever argued in court was as solicitor general this past year. Now her record in academia I think is also questionable in terms of showing that she really has grappled with the major constitutional questions that are going to come before her. Most academics, certainly academics who have taught at major laws schools the way she has—Harvard and Chicago—have legal writings and legal scholarship that deals with these issues that’s cited frequently by judges and by other academics. And she has a paucity of legal scholarship. Glenn has mentioned this too. During the time that some of us—including Glenn, myself, and other law professors—were speaking out about the Bush policies that were leading to the torture and abuse of prisoners, indefinite detention, keeping people at
Guantánamo, trying people in kangaroo courts—many of us were speaking out; Elena Kagan said nothing, wrote nothing. I just don’t see how she’s qualified to be on this court, either due to her legal qualifications or due to her values, and certainly values do come with these nominees, whether they like to try to sanitize them or not. So I think this is very, very concerning that with this golden opportunity Obama had to pick a giant of a Justice to stand up to, not the conservatives on the court, but the radical right-wingers on the court, who are unabashed in their views that corporations have more rights than people do, that equality is not a value that should be elevated. And so I think that it’s very, very concerning that he has really in some ways squandered this nomination.

CS: I think Marjorie just started getting at the answer to this next question, but I want to ask you, Glenn, why is it important, why do you think the court needs a new progressive voice now?

GG: Well, first of all, the way that you assess the impact that a nominee has is not just by looking at them in isolation but by thinking about how they would compare to the judge whom they’re replacing. And she’s replacing Justice Stevens who has become the leader of the liberal wing of the court, at least to the extent that such a thing can even be said to exist. So, even if it’s true that she’s a good Democrat, or sort of a centrist Democrat, if she’s to the right of Justice Stevens, then by definition, she will be moving an already extremely conservative Roberts Court further to the right. The other aspect of it is that one of the selling points that is being touted by her proponents is that she will be so skilled at attracting conservative judges to her side. So right now we only have four liberal justices if she’s, you know, deemed a Democrat or a liberal there will still only be four so it’s super important to have somebody who can attract Justices to your side. I already talked about the reasons why her record as dean doesn’t at all suggest that she’ll be able to do that, but what Marjorie just said is so important, and it’s not gotten enough attention. Everyone has been conceding that she’s qualified in a sense that she’s, by all appearances, perfectly smart—I have no reason to doubt that—but this lack of experience in a courtroom, not just as a judge but even as a litigator: for better or for worse, the other eight justices on the Court are people who have spent their entire adult careers in a courtroom, either as judges, or in John Roberts’ case, as a very high-level litigator. The language that they speak is of people who have been essentially very, very experienced in terms of how they think about the way courts work. Elena Kagan is a complete novice. As Marjorie said she’d never been inside of a courtroom until 14 months ago. When she went before the court on Citizens United, she was asked about a line of First Amendment cases that every First Amendment litigator would know, and she had no idea what she was being asked about. I don’t understand how anyone thinks that she will be able to command the respect of the other justices, including the conservative justices or be able to formulate arguments that appeal to them or speak language that persuades them, given her complete and utter lack of experience in being inside of a courthouse. I mean it’s really extraordinary that she was named as solicitor general, the executive branch’s litigator, even though she’s never been a litigator. And it’s even more extraordinary that after 14 months of being in courts, basically a second-year associate in a law firm, Obama’s now ready to put her on the Supreme Court.

CS: Well, I’d like to turn to the mainstream media discussion of the nomination now. On May 11, USA Today ran the headline, “Obama Aims for ‘Tenacity’: Choice of Kagan for Court Signals Desire for a Strong Voice,” with a story reporting how “Kagan’s nomination also says something about the tenacity of the president who selected her and his determination to refashion a court that has veered increasingly to the right in recent decades.” There was also a CBS Evening News report the day before that described Kagan’s career as putting her solidly on the left. Marjorie Cohn, what do you say about mainstream coverage that finds Kagan to the left?

MC: Well I guess it depends on where you’re standing politically because I understand that some Republicans are going to question—well, Jeff Sessions who said she has a thin record, I actually agree with him on that. But also they’re concerned about her stand on Don’t Ask Don’t Tell, which was not much of a stand, as Glenn said, and it’s something that you mentioned before. She’s spoken out very strongly against Don’t Ask Don’t Tell in the military, and for a brief time said that military recruiters couldn’t come on the Harvard campus when she was dean, but when push came to shove, she did let them on, she just let them on a different part of the campus. So she really did not take a strong position. And in terms of moving the court to the right, which Glenn talked about, there’s another thing that I think bears mentioning: when George W. Bush was amassing unbridled executive power, the Supreme Court put the brakes on four times—three times when it had to do with non-citizens. And Justice Stevens wrote two of those opinions and assigned the other to Kennedy, but his fingerprints were all over it. We have no clue as to how Kagan would rule in these executive power cases, which will invariable come to her; although what she told Lindsey Graham at her solicitor general confirmation hearing should give us pause.

CS: I’d like to get you to comment, beginning with you Glenn, on what you think would be some of the most important questions to pose to her at her confirmation hearing.

GG: What’s ironic about that question is that 1) When I started reading about Elena Kagan, one of the things that impressed me the most, one of the few things that I actually was enthused about, was this 1995 book review that she wrote in a law review in which she very scathingly condemned the Supreme Court confirmation process as what she called a vapid and hollow charade. And she said it was embarrassing that senators allow people to go onto the Supreme Court without demanding answers, very concrete answers to specific questions about the nominee’s view of past cases and about the law. So I think that those standards that Kagan so eloquently and persuasively articulated for other nominees—although she’s said that she’s now had a change of heart, and the White House said that she no longer believes that, conveniently, now that she’s a nominee—are what we ought to apply. And I think it’s legitimate for her not to say how she would vote on future cases, but it’s absolutely imperative, especially given her extremely unusual lack of a record, to know what her belief system is or how she thinks about the law to find out what she thinks about past cases. Was Roe v. Wade rightly decided? Would she have voted to overturn Bowers v. Hardwick? How would she have voted in Bush v. Gore? How about Hamdan and Hamdi and the other cases Marjorie just referenced regarding executive power? What are her views of the scope of the Article 2 power, in terms of the president’s ability to override acts of Congress? Or the due process clause and the role it plays in the rights of detainees? Or the president’s ability to assassinate U.S. citizens without any charges or any process of any kind? It’s absolutely imperative that on all of these critical issues that are going to come before the court and have already come before the court, that we know her thoughts and belief system about how she thinks about these questions, how she interprets the Constitution, and how it applies to many of the most critical controversies of the day. She said other nominees should be forced to answer those; I think she should be held to her same standard before we put her on the Supreme Court for the next 30-40 years.

CS: Marjorie Cohn?

MC: I think she should be asked about her statement at the solicitor general confirmation hearing that the Constitution doesn’t have any affirmative rights and ask her to explain that. She should be asked, and in light of her lack of judicial experience and courtroom experience and paucity of legal scholarship, what qualifies you to be a justice on the Supreme Court? Certainly the right-wing justices have a judicial philosophy and I think for probably most of them it’s some sort of originalism, which they’ve been very upfront about—Scalia has in particular—and the other ones as well. What is your judicial philosophy? And it would be very interesting to see if she even has one or if she admits to having one.

CS: We’ve been speaking with‘s Glenn Greenwald, and Marjorie Cohn, Professor of Law at Thomas Jefferson School of law.

Thanks again to both of you for joining us today on CounterSpin.

GG: Thank you.

MC: My pleasure, Steve.