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You are here: Home / Politics / Activist Judges! / Please Explain

Please Explain

by John Cole|  June 30, 201012:34 pm| 197 Comments

This post is in: Activist Judges!

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Can someone explain this reaction from Emptywheel:

After prompting Kagan to deliver the standard justification for detaining enemy combatants during war and rewarding her with a condescending compliment, Lindsey starts by getting Kagan to agree that the war on terror will never end.

Lindsey: [Speaking of her rote recitation of the basis for indefinite detention] That’s a good summary. The problem with this war is that there will never be a definable end to hostilities, will there?

Kagan: [Nodding] That is exactly the problem, Senator.

What a breath-taking exchange! Rather than challenge Lindsey on his slippery definition (referring to “hostilities” rather than war), rather than challenging him on the premise, Kagan simply nods in agreement. One minority party Senator and the Solicitor General sat in a hearing today and decided between them the state of hostilities under which the Executive Branch has assumed war-like powers to fight terrorism will never end.

The police state will continue forever.

Maybe I am misinterpreting these remarks, and you have to watch the video, but didn’t Kagan just say it is a bad thing that we are currently engaged in never-ending hostilities? Don’t we agree that is a bad thing? Isn’t Kagan right? What should she have said?

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Reader Interactions

197Comments

  1. 1.

    Beej

    June 30, 2010 at 12:40 pm

    I can’t speak to what she might have meant, but the fact is that the fight against terrorism will never end. That is precisely the reason that this fight should be treated like a police problem rather than a military one. The “war on terrorism” meme that the Bush administration flogged for all it was worth is a very destructive fraud. There is no military solution to terrorism, and thus no justification for a ” war on terror”. Terrorism is a police problem like bank robbery or homicide. It will always be with us, but needs to be contained.

  2. 2.

    smedley

    June 30, 2010 at 12:46 pm

    I think Wheeler wanted Kagan to show a little emotion. You know, fling her glass of water at Graham and scream “Goddamit, Senator, why didn’t you say that to Bush when he wanted to start this fucked-up war?”

  3. 3.

    Mr Furious

    June 30, 2010 at 12:47 pm

    “That’s exactly the problem.” ≠ “You’re right, Huckleberry.”

  4. 4.

    LarsThorwald

    June 30, 2010 at 12:48 pm

    I have to say Marcy Wheeler is reading this one totally and completely wrong. I read this comment this way:

    “Well, it would be one thing if the question of the detention of enemy combatants and other civil liberties issues arising under the GWOT were considered in the context of a war with limited and defined boundaries — such as World War II or even Vietnam, when hostilities were formally or at least largely formally ended — but that’s not what we have here. What we have here is a war where you have no clearly defined enemies, no clearly defined theaters, no clearly defined objectives other than ‘defeating terrorism’ and that is not likely to occur anytime soon. When we are at war everywhere and nowhere at once at all times, that creates the Constitutional problem.”

    Marcy is a good reporter, but this is way, way, way misreading Kagan.

    It’s like, pace Greenwald, she is looking for some way to ding Kagan.

  5. 5.

    Flitterbic

    June 30, 2010 at 12:49 pm

    She should have said, “Senator, put a sock in it and acknowledge that a major university in your state, after nearly two centuries of feckless athletic endeavor, has finally won a championship in a major sport. Go ‘Cocks! Now, do I have your support, or are you a damned Clemson fan?”

  6. 6.

    LT

    June 30, 2010 at 12:49 pm

    “That is exactly the problem” is not happy-happy yes nodding. I don’t get it either. It’s a really good response. These fuckers have actually taken “We have always been at war with Eastasia” and made it a honest-to-goodness, right there for all to see policy. Fuck me.

  7. 7.

    Indie Tarheel

    June 30, 2010 at 12:49 pm

    Clearly, she was supposed to do this.

  8. 8.

    Sentient Puddle

    June 30, 2010 at 12:50 pm

    Uh…too little context from that excerpted quote. It certainly reads to me like she’s saying “Yes, the problem is you morons declared a war on a concept, which is something you can’t win.” But I suppose you’d have to go to the video or extended transcript, something I have absolutely no desire to do.

  9. 9.

    LT

    June 30, 2010 at 12:50 pm

    @smedley:

    I think Wheeler wanted Kagan to show a little emotion. You know, fling her glass of water at Graham and scream “Goddamit, Senator, why didn’t you say that to Bush when he wanted to start this fucked-up war?”

    If kagan can’t do it, can comeone? Please? Maybe Franken?

  10. 10.

    srv

    June 30, 2010 at 12:50 pm

    It’s a bad thing like the Villagers see torture as a bad thing. It’s not like Scalia likes torture, it’s just that the law says “cruel and unusual punishment” and torture isn’t punishment.

    These people, and Kagan, while constipated about such things, aren’t going to do anything about them.

  11. 11.

    LT

    June 30, 2010 at 12:50 pm

    @smedley:

    I think Wheeler wanted Kagan to show a little emotion. You know, fling her glass of water at Graham and scream “Goddamit, Senator, why didn’t you say that to Bush when he wanted to start this fucked-up war?”

    If Kagan can’t do it, can someone? Please? Maybe Franken?

  12. 12.

    Guster

    June 30, 2010 at 12:51 pm

    I think the objection is this: he says, ‘because of X and Y, this war will never end,’ and she agrees.

  13. 13.

    LT

    June 30, 2010 at 12:51 pm

    Sorry, thought I caught it before it posted. Please delete the first one.

    And the edit function is gone, huh? Problematic?

  14. 14.

    geg6

    June 30, 2010 at 12:52 pm

    Well, it’s hard to keep your Firebagger merit badge shiny if you don’t deliberately misunderstand an easily understandable statement by the-worst-person-who-ever-lived-with-the-sole-exception-of-Barack-“He’s Not Hilary”-Obama, Elena Kagan.

    By the way, Sully posted a nice find on the evolution of the use of the word “torture” in conjunction with water boarding.

    http://docs.google.com/viewer?a=v&q=cache:_DUYPGM26RoJ:www.hks.harvard.edu/presspol/publications/papers/torture_at_times_hks_students.pdf+kennedy+school+Neal+Desai,+Harvard+Law+School+Andre+Pineda,+Majken+Runquist,+Mark+Fusunyan&hl=en&gl=us&pid=bl&srcid=ADGEESgLURCjqTFT9Jhvd1s_NTw9we8nFt0Y4LWKt91S7P9uhAttXdfm68HnqotZ2K6nNEa9BVfglvCKeaknuWAHiIIjhColpXOQbenL4qdqaax2QfpIMOc2nxxFBFryybjHnL4fngX0&sig=AHIEtbQO_t7PPk-UCR6BcVmatCnP06gtlw

  15. 15.

    Montysano

    June 30, 2010 at 12:53 pm

    What should she have said?

    Kagan: “Well, Senator, the “war” on “terror” [Kagan makes air quotes here] might actually end if the USA would cease its endless meddling and ratfucking in the Middle East.”

    That woulda been fun….

  16. 16.

    eemom

    June 30, 2010 at 12:53 pm

    I can explain it. Wheeler, contrary to popular opinion, is nothing but a self-important idiot playing lawyer dress-up.

    The good news is, FDL claims to have met its “goal” of raising $50k to keep that “fiercely independent journalism” alive. Now it’s gunning for $60k. If there are that many fools out there with money from which to be parted, maybe the economy isn’t as bad as we think.

  17. 17.

    LarsThorwald

    June 30, 2010 at 12:53 pm

    @smedley: maybe Marcy wanted the flash of emotion she showed when she somewhat angrily slapped some GOPer down about how the GOP tried to impeach Clinton “for a blowjob,” on national television.

    That may have been satisfying for Marcy, but I’m not sure that putting MSNBC in the uncomfortable position of having to apologize for your language on air helps, you know, get the message out.

    I don’t think Kagan’s response reflects a view that we are in a constitutionally unproblematic period of eternal war.

    For fuck’s sake.

  18. 18.

    ellaesther

    June 30, 2010 at 12:55 pm

    I believe that Lindsey made the unforgivable error of using a synonym.

    “…this war… end to hostilities…” rather than the apparently ideologically correct construction of “…this war… end to this war…”.

    I just hate it when people are well-spoken, don’t you? Just imagine if Lindsey had said “…this war… end to the fighting…”! Or “end to the conflict”! Oh, the horror.

    People who call the United States of America a police state should be required to live in one for a month.

  19. 19.

    Console

    June 30, 2010 at 12:55 pm

    It’s a strange complaint, because the executive didn’t assume any fuckin powers. It’s been given the power to wage an open-ended police action by a very uncaring and deferential congress. A congress that keeps going out of it’s way to circumvent supreme court rulings in an effort to give the executive as much leeway as possible. I don’t know how Kagan can “challenge” the truth.

  20. 20.

    LT

    June 30, 2010 at 12:55 pm

    @eemom: Somebody sounds jealous.

  21. 21.

    eemom

    June 30, 2010 at 12:56 pm

    and btw Kagan has been kicking ass in these hearings.

  22. 22.

    djork

    June 30, 2010 at 12:56 pm

    She should have said, “Senator, put a sock in it and acknowledge that a major university in your state, after nearly two centuries of feckless athletic endeavor, has finally won a championship in a major sport. Go ‘Cocks! Now, do I have your support, or are you a damned Clemson fan?”

    Perfect.

  23. 23.

    Bill E Pilgrim

    June 30, 2010 at 12:56 pm

    Speaking of endless hostilities:

    Research 2000 Chief … Promises ‘Criminal Sanctions’ For Kos

    I sincerely doubt it would go that route but if it did, that trial would be like Perry Mason for complete nerds.

    “And when your uncle refused your blackmail, in a fit of rage, you picked up the random number generation algorithm and brought it down on his data over and over, causing the Monte Carlo simulations to give obviously non-random distribution samples, didn’t you!”

    “Yes! Yes, it was me, I did it!” (sobs)

  24. 24.

    Steve T.

    June 30, 2010 at 12:57 pm

    Isn’t it also true that she’s trying to get confirmed for this position, and that picking fights with senators is not the way to do it? The time for that is when you’re actually on the bench.

  25. 25.

    Downpuppy

    June 30, 2010 at 12:57 pm

    It becomes clear in EWs post that the problem is when they say “problem” they mean “opportunity”.

  26. 26.

    Poopyman

    June 30, 2010 at 12:58 pm

    Yeah, I can explain it. That whole post is an over-parsing and over-analyzing of the whole exchange.

    She gets that way sometimes. Best to let it slide.

  27. 27.

    fucen tarmal

    June 30, 2010 at 1:06 pm

    i thought her answer was tight, she addressed the question, which was a fly rod cast into her opinion on war, and these wars, which was intended to invite her to expound at her peril, and she answered it only as the war affects the law’s definition of prisoner of war, enemy combatant, barber who didn’t wave when the tanks rolled through his town, etc and the implications thereof, simply from a legal stand point, that is the only question, she didn’t take the bait.

    ergo she is too crafty. we must fault her to appear incisive.

  28. 28.

    eemom

    June 30, 2010 at 1:07 pm

    @LT:

    Jealous of the ability to milk money out of idiots to sit around writing useless, inflammatory shit about subjects they know nothing about? Sure, I guess.

  29. 29.

    fucen tarmal

    June 30, 2010 at 1:13 pm

    @djork:

    this must give jim bunning a double sad. but at least he got to watch it.

  30. 30.

    KG

    June 30, 2010 at 1:14 pm

    @srv: oh, you have no idea how fucked up Scalia is on cruel and unusual punishment. His position, IIRC, is that punishment is only cruel and unusual if it would have been cruel and unusual when the Bill of Rights was ratified.

    Let that sink in for a moment.

    Basically, his position is we are bound by the standards of 1790, and evolving cultural standards be damned.

    I have to admit, I got rather annoyed when I heard Senators talking about “results oriented judges” and completely ignoring Scalia. I’ve seen it more than a few times where he changes his jurisprudence to get the outcome he wants. Those cases are the most fun, by the way, where Thomas and Scalia are on opposite sides – it’s usually because Scalia doesn’t like the outcome that sticking to his principles would actually result in.

  31. 31.

    LT

    June 30, 2010 at 1:15 pm

    @eemom: You sound jealous, again. Why else would you be so shit-spreading angry about It? I mean really – what’s it to you? If it’s just idiots, well, there are lots of idiots out there. Maybe you’d be better off focussing on ones that support preemptive war and forced pregnancy and firing U.S. attorneys for political reasons and stuff like that. Or maybe you could go to Kos and write a “Jane Hamsher is and evil c*nt” diary. They love it over there.

  32. 32.

    sukabi

    June 30, 2010 at 1:15 pm

    Kagan made a benign statement, did not agree that the “war must go on”… there are those that are going to hyperventilate about EVERYTHING… it’s more than likely that emptywheel just doesn’t think Kagan would be liberal enough so her own bias is showing…

    Kagan’s whole goal in these hearings is to be as unthreatening as possible so she can secure their support… doesn’t have any bearing at all on what she will do as a SC justice… this is the way the game is played, and they all know it.

  33. 33.

    Brachiator

    June 30, 2010 at 1:17 pm

    @Flitterbic:

    She should have said, “Senator, put a sock in it and acknowledge that a major university in your state, after nearly two centuries of feckless athletic endeavor, has finally won a championship in a major sport. Go ‘Cocks! Now, do I have your support, or are you a damned Clemson fan?”

    If Kagan actually said “Go Cocks,” Andrew Sullivan would end up writing 50 columns about whether or not this proved that Kagan was in the closet.

  34. 34.

    4jkb4ia

    June 30, 2010 at 1:17 pm

    I don’t claim to be explaining it. Now I wish I had read the whole post.

    However, Graham also used the word “problem”, implying that it was a bad thing,
    and
    It doesn’t matter if it is a good thing or a bad thing. If hostilities don’t come to an end, the legal framework meant to deal with them doesn’t come to an end. If you listen to what Kagan has said about judicial modesty, it is up to Congress to form that legal framework more than the courts, and the Court has deferred to Congress when it has spoken. The record of this Congress does not inspire confidence, especially considering that they waved through renewal of the Patriot Act because there were so many more important things to deal with.

    (Scotusblog poll of about 2000 viewers on Kagan confirmation: 59% strongly support, 21% support, 12% oppose, 9% strongly oppose)

  35. 35.

    Cat

    June 30, 2010 at 1:21 pm

    @Bill E Pilgrim:

    I sincerely doubt it would go that route but if it did, that trial would be like Perry Mason for complete nerds.
    …
    “And when your uncle refused your blackmail, in a fit of rage, you picked up the random number generation algorithm and brought it down on his data over and over, causing the Monte Carlo simulations to give obviously non-random distribution samples, didn’t you!”
    …
    “Yes! Yes, it was me, I did it!” (sobs)

    You say this like its a bad thing.

  36. 36.

    PeakVT

    June 30, 2010 at 1:21 pm

    Like I said, the meaningful part of the nomination process has ended.

  37. 37.

    4jkb4ia

    June 30, 2010 at 1:21 pm

    Emptywheel is far from an idiot and has deferred to the actual lawyers about things that are likely to go on in an actual courtroom by saying such things as “Anyone who is a lawyer can correct me.” What John has above is a reaction of a civil liberties worrywart more than a lawyer. EW is master of the Plame case because she has a gift for constructing complex narratives more than any legal expertise in particular.

  38. 38.

    Tom65

    June 30, 2010 at 1:22 pm

    Not sure what Marcy’s objection here is, as the judicial branch doesn’t make foreign policy. Kagan’s (non) agreement with Lindsay has no weight whatsoever.

  39. 39.

    Cat

    June 30, 2010 at 1:22 pm

    @eemom:

    Jealous of the ability to milk money out of idiots to sit around writing useless, inflammatory shit about subjects they know nothing about? Sure, I guess.

    Its annoying we have to do this for free, amirite?

  40. 40.

    stuckinred

    June 30, 2010 at 1:22 pm

    You think her post is bad you should read the firebagger flash mob replies!

  41. 41.

    stuckinred

    June 30, 2010 at 1:24 pm

    @eemom: sic em!

  42. 42.

    TheStone

    June 30, 2010 at 1:25 pm

    She should have pushed back by responding that the AUMF does NOT unambiguously grant the power to wage indefinite hostilities all over the globe. She tacitly ceded the initiative to Graham and the Grahamsters that would like to read the AUMF that way. The decision to NOT define the endgame is a conscious decision and is NOT an unavoidable result of 9/11. Graham and Kagan were not saying it is a problem in the sense that they would like to change that vision; they were agreeing that it is a problem that people like Glenzilla “just don’t get it.”

  43. 43.

    ruemara

    June 30, 2010 at 1:26 pm

    I think she was supposed to jump up on the table and give us an astounding oratory decrying the military industrial complex and unregulated capitalism along with the fascist state, set fire to congress with a hastily improvised torch made from Jeff Sessions body hair then rip off her shirt and bra, a’ la Liberty in this image, leading a populist revolution that will result in the establishment of a brand new progressive America.

    I’d like to see that too, but probably not as much as Madame Wheeler.

  44. 44.

    Zifnab

    June 30, 2010 at 1:32 pm

    @ruemara: And all this time I thought she was looking to be made a SCOTUS judge, not a slightly pornographic revolutionary artwork painting.

  45. 45.

    ruemara

    June 30, 2010 at 1:33 pm

    @Zifnab:

    In this economy, you take whatever job you can get. I seem to be a doorstop.

  46. 46.

    cat48

    June 30, 2010 at 1:33 pm

    I have no idea what she wanted. I was following her on twitter & there was a Greenwald exchange in which they criticized Kagan; but fool that I am, I didn’t take the stmt the same way……but that’s me. Some folks just appear to look for the very worst in others & twist info I’ve noticed.

  47. 47.

    Punchy

    June 30, 2010 at 1:34 pm

    @Indie Tarheel: @Indie Tarheel: Wonder woman is Teh Hawt.

  48. 48.

    Sweet Fanny Adams

    June 30, 2010 at 1:34 pm

    @Bill E Pilgrim: LOL. Too funny!!

  49. 49.

    General Egali Tarian Stuck

    June 30, 2010 at 1:36 pm

    it takes a lot of red meat to feed firebagging natives. Pretty soon they will come for the few Obots on the nutroots. I am ready though, with lots of garlic and me purple plastic unicorn army. It is small but feisty.

  50. 50.

    Corner Stone

    June 30, 2010 at 1:37 pm

    @Bill E Pilgrim: While I disavow your use of the adjective “complete”, I must otherwise applaud you for what seemingly appears to be a win of previously mentioned internets.

  51. 51.

    Brachiator

    June 30, 2010 at 1:38 pm

    @Bill E Pilgrim:

    I sincerely doubt it would go that route but if it did, that trial would be like Perry Mason for complete nerds. “And when your uncle refused your blackmail, in a fit of rage, you picked up the random number generation algorithm and brought it down on his data over and over, causing the Monte Carlo simulations to give obviously non-random distribution samples, didn’t you!”

    I saw that episode on the classic TV channel the other night. It was called, “The Case of the Presumptious Pollster.”

    Funny stuff.

  52. 52.

    bobbo

    June 30, 2010 at 1:39 pm

    The weird part is Lindsey Graham. I didn’t realize he had any misgivings about the war on terra. Maybe it’s because he’s secretly gay?

  53. 53.

    Corner Stone

    June 30, 2010 at 1:39 pm

    @ruemara:

    I think she was supposed to jump up on the table and give us an astounding oratory decrying the military industrial complex and unregulated capitalism along with the fascist state, set fire to congress with a hastily improvised torch made from Jeff Sessions body hair then rip off her shirt and bra, a’ la Liberty in this image, leading a populist revolution that will result in the establishment of a brand new progressive America.

    Oddly or not, this brought to mind the choreographed dance of The Pirates of Penzance.
    Which would’ve been awesome.

  54. 54.

    Corner Stone

    June 30, 2010 at 1:42 pm

    @stuckinred:

    You think her post is bad you should read the firebagger flash mob replies!

    How do you type so well one handed?

  55. 55.

    ruemara

    June 30, 2010 at 1:43 pm

    @Corner Stone:

    Set to music, this would be a Tony Awards sweep.

  56. 56.

    cleek

    June 30, 2010 at 1:45 pm

    @4jkb4ia:

    EW is master of the Plame case…

    objection: irrelevant.

  57. 57.

    sparky

    June 30, 2010 at 1:46 pm

    i thought her point was rather obvious, though most of the commenters above seem to have ignored it in favor of various attempts at wit.

    when Kagan accepted the conflation of terrorism with hostilities and war, she accepted the major premise of the Bush and Obama administrations, namely, that terrorism entitles the state to maintain a permanent war footing, complete with extra-ordinary and unconstitutional exertions of power by the executive branch. all the things that civil libertarians complain about–illegal wiretaps, email sniffing and snooping, torture, detention, denial of what till now were considered guarantees of law–all those and more flow from this premise.

    don’t believe me? look at the rationale for any Bush/Obama civil liberties assault/destruction, and at the bottom you will find the “war on terror/we are at war/it will never end.”

    thus, Kagan has ensured that whatever else might happen, she will be a reliable vote for the continued destruction of american civil liberties.

    so that’s why she’s upset, and that’s why everyone here should be too, if you actually care about what used to be a republic. it continues to astound and depress me how easily this country has slipped into a form of authoritarianism without even a whimper.

  58. 58.

    kay

    June 30, 2010 at 1:48 pm

    It’s not enough.
    She has to look and see if Kagan challenged any of the GOP Senators on any statement of law.
    She has to look and see if there’s anything that goes against this hearing of the response, her interpretation of this response, and then include that.
    It’s too easy to find something when you start out looking for it.

  59. 59.

    Corner Stone

    June 30, 2010 at 1:50 pm

    @kay:

    It’s too easy to find something when you start out looking for it.

    Speaking of which, have you found your marbles yet?

  60. 60.

    cleek

    June 30, 2010 at 1:51 pm

    @sparky:

    she accepted the major premise of the Bush and Obama administrations, namely, that terrorism entitles the state to maintain a permanent war footing, complete with extra-ordinary and unconstitutional exertions of power by the executive branch

    your hyperbole aside…

    (pulls string) The AUMF says:

    (a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

    yes, that’s horribly broad, but it’s not a “premise”. it’s an actual law.

  61. 61.

    Corner Stone

    June 30, 2010 at 1:52 pm

    @ruemara:

    Set to music, this would be a Tony Awards sweep.

    Just once. Just freakin once.
    Don’t these bastards at least owe it to us one damn time?

  62. 62.

    General Egali Tarian Stuck

    June 30, 2010 at 1:53 pm

    because she has a gift for constructing complex narratives more than any legal expertise in particular.

    You know who else had a gift for complex narratives? That’s right, Mordecai Jones.

  63. 63.

    rootless_e

    June 30, 2010 at 1:53 pm

    I can explain it: emptywheel is narrative driven.

    Speaking of counter-narrative, here’s my argument for a bigger defense budget.
    http://www.dailykos.com/story/2010/6/30/880379/-Increase-the-Defense-Budget-for-a-Green-Pentagon

    this line of thought is based on the algorithm leveraging the probability that every policy proposal of the “progressive” left is wrong, so just looking for a counter may discover new good ideas.

  64. 64.

    joe from Lowell

    June 30, 2010 at 1:54 pm

    (pulls string) The AUMF says:

    (a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

    Which Elena Kagan agrees is a problem.

    It’s funny – I hear antiwar lefties say that this a problem all the time. Someone mentions that the president has certain war powers, and they reply, “The problem is, there’s no end to this war.”

    My theory: the most important thing to Protest People is their self-image as Protest People, and their standing among other Protest People. If they respond to something with a reaction other than protest, then they don’t get to be Protest People, and other, more hardcore Protest People will accuse them of not being Protest People.

  65. 65.

    Mnemosyne

    June 30, 2010 at 1:55 pm

    @TheStone:

    Graham and Kagan were not saying it is a problem in the sense that they would like to change that vision; they were agreeing that it is a problem that people like Glenzilla “just don’t get it.”

    And what else does your crystal ball tell us, Carnac?

  66. 66.

    joe from Lowell

    June 30, 2010 at 1:55 pm

    You know who else had a gift for complex narratives? That’s right, Mordecai Jones.

    Godwi…what?

  67. 67.

    kay

    June 30, 2010 at 1:57 pm

    @Corner Stone:

    Oh, I can’t watch the hearings. I certainly wouldn’t rely on a single quote to discern Elena Kagan’s views on the war on terror, though.

    But, then, I’m not looking to prove my thesis, while pretending to gather facts.

    Anything in this hearing that goes the other way? Anything about her replies that would indicate this is how she responds when any Senator makes any silly and facile statement regarding law?

    Who knows! Not Emptywheel.

  68. 68.

    cmorenc

    June 30, 2010 at 2:00 pm

    Note that at least so far as the quoted exchange goes, Kagan leaves completely open the issue of what “problem” it is that there will never be a definable end to “this” war (meaning the war on terror). Despite the use of the phrase “that’s exactlythe problem”, she never specifies whatever which problem it is that she has “exactly” in mind.

    Obviously, Graham thinks this “problem” can only have one responsible interpretation: that SCOTUS must recognize the paramount need to be deferential to the national security apparatus regarding detention, snooping, searches, screening, executive authority etc. etc. Kagan, however, has left open that the problem is where an open-ended, indefinitely lasting notion of “hostilities” leads constitutionally if this implies that it is a card that always trumps other civil liberties concerns or concerns over the limits of executive authority.

  69. 69.

    General Egali Tarian Stuck

    June 30, 2010 at 2:00 pm

    @cleek: And from the UN resolution immediately after 9-11

    Council members departed from tradition and stood to unanimously adopt resolution 1368 (2001), by which they expressed the Council’s readiness to take all necessary steps to respond to the attacks of 11 September and to combat all forms of terrorism in accordance with its Charter responsibilities

    Fairly sweeping in it’s own right.

  70. 70.

    sparky

    June 30, 2010 at 2:01 pm

    @cleek:
    (1) show me where i used hyperbole;
    (2) the last time i checked, the AUMF did not suspend the US Constitution. but perhaps i am mistaken. perhaps you can explain to me, as an example, how an authorization to use force against people who conspired to perform a specific terrorist act at a time in the past provides a justification for determinations by the Executive that US citizens may be executed anywhere at any time without any prior judicial action.

  71. 71.

    kommrade reproductive vigor

    June 30, 2010 at 2:03 pm

    I’m sick of being broke. Where can I buy stock in emo-pants?

    What should she have said?

    You lie!

  72. 72.

    Zeke

    June 30, 2010 at 2:08 pm

    That’s exactly the problem is how Obama has failed me today.

  73. 73.

    Allan

    June 30, 2010 at 2:09 pm

    Can someone explain this reaction from Emptywheel:

    Forget it, John. It’s FDL.

  74. 74.

    BTD

    June 30, 2010 at 2:11 pm

    Did you e-mail Marcy?

    The title is rhetorical right?

    BTW, does someone have a link to the transcript of the hearing?

  75. 75.

    rootless_e

    June 30, 2010 at 2:13 pm

    This is what the Left wants

    1) Kagan calls Graham a fascist and announces her program is abortions for all, gay rights, and the destruction of US imperialism.
    2) ?
    3) Profit!

  76. 76.

    Brachiator

    June 30, 2010 at 2:14 pm

    This just in:

    The Senate on Wednesday unanimously confirmed Gen. David Petraeus as the new commander of the Afghanistan war. The vote was 99-0.

  77. 77.

    cleek

    June 30, 2010 at 2:15 pm

    @sparky:

    (1) show me where i used hyperbole;
    (2) the last time i checked, the AUMF did not suspend the US Constitution.

    1 meet 2.

    the Constitution remains in force. it has not been ‘suspended’.

    perhaps you can explain to me, as an example, how an authorization to use force against people who conspired to perform a specific terrorist act at a time in the past provides a justification for determinations by the Executive that US citizens may be executed anywhere at any time without any prior judicial action.

    look, sparky, i agree with you that the ‘execution’ thing is preposterous in principle. but, there appears to be legal support for it (for example, in the AUMF). personally i’d love for it to come before the SCOTUS and be defeated. but either way, the Constitution remains in force. you can tell, because we’re not in a state of anarchy.

    just because a law appears to violate the Constitution doesn’t mean the Constitution is null and void.

  78. 78.

    stuckinred

    June 30, 2010 at 2:16 pm

    @Corner Stone: @Corner Stone: What’s with you Seinfeld?

  79. 79.

    rootless_e

    June 30, 2010 at 2:17 pm

    @Mnemosyne: Kagan’s subtle eyelash movement indicated her intent to defund social security. Her chair shifting leads any observant progressive to understand she has a shrine to Ronald Reagan in her basement at which she kills anti-war protesters while invoking Beelzebub. And her use of “Senator” to refer to Senators means Glenn Greenwald has her number!.

    Sheesh.

  80. 80.

    rootless_e

    June 30, 2010 at 2:17 pm

    @Mnemosyne: Kagan’s subtle eyelash movement indicated her intent to defund social security. Her chair shifting leads any observant progressive to understand she has a shrine to Ronald Reagan in her basement at which she kills anti-war protesters while invoking Beelzebub. And her use of “Senator” to refer to Senators means Glenn Greenwald has her number!.

    Sheesh.

  81. 81.

    jl

    June 30, 2010 at 2:20 pm

    What is this, drama critics debating the meaning of lines from a Pinter play? Who the heck knows what Kagan revealed or chose not to reveal with such a cryptic remark?

    I think ‘the problem’ is that the US society and government has decided to deal with politically and religiously motivated violence, which has been around about as long as the human race has been around, as if it were a war between two organized governments. All sorts of policies that are dangerous to our freedoms and any concept of the rule of law and due process in a democracy, and that are also ineffective, and even dangerously counterproductive, are adopted based on what is a dubious and vague analogy.

    That is the problem. Maybe that is what Kagan meant. Or meaybe she meant:

    For God’s sake, anarcho-communists and radical race egalitarians shot two presidents at the end of the nineteenth century, endangering the Republic at the pinnacle of its prosperity! This war will never end. Why did it take more than a decade to start the Palmer raids, and why were they ended? (snark)

    I hope that she meant the former.

    With Kagan, there has been a tendency t to over interpret her remarks. This tendency is especially inappropriate during her confirmation hearings, where her main objective is to get the approval of panel of effing Senators, almost half of which is populated by bad faith artists, intellectual thugs and conmen looking for a gaffe to stop her nomination. And a person who sometimes wanders near sanity but usually chickens out in the end, or wanders into a odd combo of self righteous and mean spirited goofiness, which may be more fitting for Graham than the other Republicans.

  82. 82.

    MikeJ

    June 30, 2010 at 2:20 pm

    @Indie Tarheel: She is clearly winning the war on tiara.

  83. 83.

    kdaug

    June 30, 2010 at 2:22 pm

    Eh, War on Terror, War on Drugs, War on Poverty – what’s the difference.

    We have to have our “wars”. How else could we rationalize our defense spending?

  84. 84.

    Corner Stone

    June 30, 2010 at 2:23 pm

    @stuckinred: I’d prefer kay stop outright lying, and it would be amusing if you sought therapy for your obsession with a website you avowedly hate.
    If that makes me a multi-millionaire then so be it.

  85. 85.

    policomic

    June 30, 2010 at 2:23 pm

    @LT: Perhaps Captain Kirk needs to beam down to the U.S. Senate to teach Spock (B. Obama) and the robotic drones (Democrats) how to be more “hu-mon.” To laugh! To cry! To love! To feeeeeeeeel!

    This would undoubtedly be a better world if only there was more emoting. And perhaps some fist-fights, scored with dramatic music.

    I, for one, won’t be satisfied until I see at least one Dem. Senator with a ripped shirt and a trickle of blood coming from the corner of his or her mouth. Feingold, I’m looking at you.

  86. 86.

    kay

    June 30, 2010 at 2:24 pm

    @rootless_e:

    I can explain it: emptywheel is narrative driven.

    Yup.

  87. 87.

    MikeJ

    June 30, 2010 at 2:27 pm

    @policomic: I have long suspected the Senator from Oklahoma is a Gorn.

  88. 88.

    Dr. Squid

    June 30, 2010 at 2:31 pm

    Fire that’s only selective for closet cases should have come out of her mouth and incinerated Graham. Then she should have pledged allegiance to FireDogLake and the Cult of Jane, who is way more important that the rest of you anyway so stop saying that.

    It’s official: Emptywheel is the Bob Boudelang of the left.

  89. 89.

    kay

    June 30, 2010 at 2:34 pm

    @eemom:

    Click the link and read the whole thing. It’s pretty appalling, and incredibly patronizing.

    Kagan is described as “cornered” and “back on her heels” and there’s a long and ludicrous discussion on why she doesn’t disavow a brief she signed on behalf of the United States, with a complete, pulled out of the ass explanation for why she didn’t do that.

  90. 90.

    kdaug

    June 30, 2010 at 2:36 pm

    @MikeJ: I have a bamboo tube and some diamonds. Now if we just find the stuff for gunpowder…

  91. 91.

    rootless_e

    June 30, 2010 at 2:37 pm

    @kay: marcy is not very smart.

  92. 92.

    rootless_e

    June 30, 2010 at 2:37 pm

    @kay: marcy is not very smart.

  93. 93.

    4jkb4ia

    June 30, 2010 at 2:39 pm

    (Graham up to question her the second time.)

  94. 94.

    fasteddie9318

    June 30, 2010 at 2:39 pm

    Wait…the war isn’t going to end when Obama parachutes onto the Ka’ba with Osama bin Laden’s decapitated head clenched between his teeth?

  95. 95.

    kay

    June 30, 2010 at 2:39 pm

    Lindsey comes back by getting Kagan to personally endorse the stance she embraced in her Solicitor General role, arguing against habeas rights for Bagram detainees.

    This is flat-out untrue, based on the transcript. That’s a very biased reading, and it’s unfair.

    Emptywheel, like Liz Cheney, has some difficulty discerning the difference between the client’s position and and the lawyer’s opinion.

  96. 96.

    rootless_e

    June 30, 2010 at 2:44 pm

    @kay: one of the main features of “progressive” commentary appears to be the same dim people being condescending about people who are manifestly smarter and more knowledgeable that one used to find only in Buckley/libertarian right-wing venues.

  97. 97.

    Indie Tarheel

    June 30, 2010 at 2:46 pm

    @MikeJ: You got room for another internet, ’cause you just won one.

  98. 98.

    kay

    June 30, 2010 at 2:46 pm

    Lindsey: Well, let me read a quote: “The Federal Courts should not become the vehicle by which the Executive is forced to choose between two intolerable options: submitting to intrusive and harmful discovery, or releasing a dangerous detainee.” Do you stand by that statement?

    Kagan: Senator Graham, can I ask whether that statement comes from that brief?

    Lindsey: Yes it does.

    Kagan: No, I uh, that statement is my best understanding of the very significant interests of the United States government in that case, which we tried forcefully to present to the Court and as you said before, the DC Circuit–a very mixed panel of the DC Circuit–upheld our argument.

    Lindsey: Right. You also said “The Courts of the United States have never entertained habeas lawsuits filed by enemy forces detained in war zones. If Courts are ever to take that radical step, they should do so only with explicit blessing by statute.” You stand by that?

    Kagan: Anything that is in that brief I stand by as the appropriate position of the United States government.

    Lindsey: [while she is speaking] Fair enough.

    She was representing the US. Presumably, she won’t be doing that when she’s a judge.

  99. 99.

    John Cole

    June 30, 2010 at 2:47 pm

    @rootless_e:

    marcy is not very smart.

    Yes, she actually is pretty smart, and a pretty good person, and on the right side of the issues, and writes some very detailed and fascinating posts.

    I just don’t think this is one of them.

  100. 100.

    Indie Tarheel

    June 30, 2010 at 2:48 pm

    @policomic: Cast Sen. Jeff Beauregard Nathan Bedford Forrest IV Sessions as a (mirror-universe) redshirt, and I’m in.

  101. 101.

    kay

    June 30, 2010 at 2:49 pm

    @rootless_e:

    “Significant interests of the United States” means “I was representing my client”. Who was the United States.

    They thought she’d say ‘that brief I wrote was a bunch of shit and my client had no legit interest”?

  102. 102.

    eemom

    June 30, 2010 at 2:49 pm

    @LT:

    better yet, why don’t you go kick some $$ into the FDL kitty? They love that over there.

  103. 103.

    kay

    June 30, 2010 at 2:51 pm

    @rootless_e:

    Elena Kagam could write a brief that goes the other way, if she was on the other side.

    She wasn’t.

  104. 104.

    burnspbesq

    June 30, 2010 at 2:52 pm

    @sparky:

    Come back when you’ve actually read and understood Hamdi, Hamdan, and Boumediene.

  105. 105.

    General Egali Tarian Stuck

    June 30, 2010 at 2:53 pm

    @John Cole: She is smart and I like her as a person, but she is also an ideologue, and takes dogmatic positions that aren’t all that smart nor truthful at times, like this take on kagan’s remarks. which goes beyond simply being wrong, for a smart person that is.

  106. 106.

    Nick

    June 30, 2010 at 2:53 pm

    Because she’s giving her customers what they ant

  107. 107.

    Nick

    June 30, 2010 at 2:53 pm

    Because she’s giving her customers what they want

  108. 108.

    rootless_e

    June 30, 2010 at 2:56 pm

    @John Cole: marcy is a good researcher, but she is hampered by her inability to see anyone else’s point of view. For example, her early writings on the Obama administration’s detention policy assumed that Obama was personally overseeing the filing of obscure legal briefs and she attempted to derive insight into Obama’s position by detailed textual analysis of these – as if the wording on circuit court filings would be the first priority of a President during a somewhat event filled first month in office.

    Her work on Plame-gate showed me the same flaws. Since she actually works, she appears a lot better than the press, but she’s got tunnel vision.

  109. 109.

    eemom

    June 30, 2010 at 2:56 pm

    @John Cole:

    she ain’t no lawyer though, and I’m kind of tired of her pretending to analyze the law as if she were one. And don’t tell me she doesn’t do that, because she does it all the time.

    As for her smarts, here’s a paraphrase of another brilliant-ass quote of hers from the comments on that thread: if someone thinks there’s a difference between “appropriate” and “legal,” she doesn’t want them on the Supreme Court. Ooookay.

    Elena Kagan has more brains in her thumbnail than Marcy Wheeler and Glenn Greenwald put together and multiplied by fifty zillion. Also too.

  110. 110.

    kay

    June 30, 2010 at 2:58 pm

    @Nick:

    I don’t know what she’s doing but interpreting Bob Bauer’s “body language” to mean he is somehow Kagan’s “minder” is unfair to Kagan.
    At least give her the benefit of actually having the opinions you’re (unfairly) ascribing to her.
    I think I’m done for the day. I didn’t even support Kagan, but this is a smear job.

  111. 111.

    Cat

    June 30, 2010 at 3:00 pm

    @rootless_e:

    one of the main features of “progressive” commentary appears to be the same dim people being condescending about people who are manifestly smarter and more knowledgeable that one used to find only in Buckley/libertarian right-wing venues.

    Can you explain this to the non opposable thumb having readers of this website.

    Like, WTF, does “manifestly smarter” mean and how does one , uh, discern the manifestation of said “manifestly smartitude”.

    And who are these smart libertarians you speak of. I mean are they smart like they can do differential calculus smart or smart like they are really good a winning arguments smart.

  112. 112.

    burnspbesq

    June 30, 2010 at 3:03 pm

    @kay:

    “They thought she’d say ‘that brief I wrote was a bunch of shit and my client had no legit interest”?”

    If they thought that, they’re ignorant. I actually think they understand what’s going on, and if the nominee was someone they liked, they would give him or her a pass on things he or she wrote as a litigator representing a client. Which makes them hypocritical.

  113. 113.

    stuckinred

    June 30, 2010 at 3:04 pm

    @Corner Stone: And I am supposed to give a fuck what you think and prefer? And another thing chump, the person that owns this blog wrote a post about Wheeler and FDL, if you have a problem with people that don’t like either one take it up with Cole.

  114. 114.

    rootless_e

    June 30, 2010 at 3:07 pm

    @Cat: The obvious example is people who have never even run for elective office let alone passed a bill lecturing the supposedly naive, feckless, and stupid Obama about how negotiation works despite his continued success. In this case, Kagan is clearly a sharp lawyer and Marcy’s condescension is I think good evidence that Marcy has no fucking idea what she’s talking about.

    The people who pioneered this style were libertarian/conservatives who loved to explain their crackpot theories by reference to “economics 101” as in: “If you knew econ 101, dumbass, you’d know that monopolies are always caused by government.”

  115. 115.

    agorabum

    June 30, 2010 at 3:09 pm

    I don’t care for Butters as much as the next, but what he said is clearly true.

    “There will never be a definable end to hostilities, will there?”
    Definable ends are like the treaty of Versailles. The Axis unconditional surrender. Even the Korean War Armstice. War’s over, here’s the punishment, this is what happens to your territories, here’s the list of your leaders we will try and exectue, etc.
    It’s cliche at this point, but yeah, no signing of the instruments of surrender on the deck of the USS Missouri.

    Even if you bag all the top Al-Queda leaders and we publicly draw and quarter Bin Laden, their type of terrorism is rooted in ideology. The ideogolgy must lose all luster before a terrorist (who sees himself as holy warrior for God fighting the evil opressors) calls it quits / gets no new recruits. And as long as the young are passionite and stupid, there are just about always new recruits for stupid, manichean crusades.

    Even when terrorists do decide to quit, there is almost always no surrender. They just stop trying to commit violent acts and fade back into the populace. The US still has plenty of violent radicals from the 60s/70s who just stopped, got jobs, got married, had kids, and bought a suburban home. Some, like Ayers, still want to be in the limelight. Some just want to cultivate their garden.

    You have to be deliberatly obtuse / pushing an agenda to try to use that against Kagan.

  116. 116.

    kay

    June 30, 2010 at 3:09 pm

    @burnspbesq:

    Dick Durbin helped Marcy out a little, by reminding her of the difference between an advocate and a judge, but she dismisses it as political.

    Note the “smooth out rough edges” nastiness:

    Later in the hearing (at about 5:50), in one of those set exchanges majority parties use to smooth out nominees’ rough edges, Durbin prompts Kagan to say with regard to indefinite detention (this is a near quote) the positions she took as Solicitor General are not necessarily the positions she’ll take as a Justice. The positions she has taken are for the US Government as an advocate. Coming from a friendly questioner, Kagan manages to reassert the abstract reason she tried to give under Lindsey’s fire for why her thoughts might change as she ascends to the Supreme Court.

    I also really object to her constantly referring to people “prompting” Kagan.

    Jesus Christ. The patronizing tone of this thing just kills me. You know, I didn’t support Kagan, but I don’t think she needs to be fed lines.
    Where is all this coming from?
    From what heights of experience giving or listening to testimony?
    I think she’s done a great job, Kagan. I found her persuasive.

  117. 117.

    David in NY

    June 30, 2010 at 3:12 pm

    Well, I think we need more of the transcript than this to decide what Graham, and therefore Kagan, meant. If by “problem” Graham (& thus Kagan), meant a difficult situation that justifies indefinite detention of people (etc.) under military standards, then that’s not good. If, on the other hand, they meant that the “problem” created constitutional difficulties, then that’s OK. But I’m damned if I know which.

    (BTW, I was on a mainstream journalistic site recently in which, if you write “damn” or even “dammit” a program changes your word to &@#(*.)

  118. 118.

    eemom

    June 30, 2010 at 3:13 pm

    @stuckinred:

    you iz da coolest.

  119. 119.

    stuckinred

    June 30, 2010 at 3:16 pm

    @eemom: I just calls em like I sees em!

  120. 120.

    BTD

    June 30, 2010 at 3:16 pm

    @kay:

    Link to the transcripts of the hearing?

    I looked in my usual places and can’t find them.

  121. 121.

    kay

    June 30, 2010 at 3:17 pm

    @burnspbesq:

    After prompting Kagan to deliver the standard justification for detaining enemy combatants during war and rewarding her with a condescending compliment, Lindsey starts by getting Kagan to agree that the war on terror will never end.

    There it is again. Kagan had to be “prompted” by Graham, and then was duped into agreeing with him.

    Incredible.

  122. 122.

    kay

    June 30, 2010 at 3:18 pm

    @BTD:

    No, I’m sorry, BTD. I’ve been quoting Marcy’s selected statements.

  123. 123.

    stuckinred

    June 30, 2010 at 3:18 pm

    @BTD: Look on FDL they have an edited video. That ok with you Corner Schmuck?

    http://emptywheel.firedoglake.com/2010/06/29/elena-kagan-and-lindsey-graham-on-the-gwot-the-sequel/

  124. 124.

    ed drone

    June 30, 2010 at 3:21 pm

    @joe from Lowell:

    My theory: the most important thing to Protest People is their self-image as Protest People, and their standing among other Protest People. If they respond to something with a reaction other than protest, then they don’t get to be Protest People, and other, more hardcore Protest People will accuse them of not being Protest People.

    I PROTEST!

    (Methinks they do protest too much).

    Ed

  125. 125.

    General Egali Tarian Stuck

    June 30, 2010 at 3:21 pm

    @kay: Aside from the details of opposition, in general, I don’t see a big difference between Wheeler and like minded liberal souls, than the opposition from the GOP.

  126. 126.

    eemom

    June 30, 2010 at 3:25 pm

    Time spent reading Wheeler’s bullshit would be much better spent watching/listening to the actual hearings, and witnessing how brilliantly Kagan keeps deflecting the pathetic traps Sessions, Hatch, Kyl, and the rest of their gang of thugs keep trying to set for her.

  127. 127.

    joe from Lowell

    June 30, 2010 at 3:40 pm

    Even if you bag all the top Al-Queda leaders and we publicly draw and quarter Bin Laden, their type of terrorism is rooted in ideology.

    I would like to note three points at this juncture:

    1. Bush based his claim to wartime Commander in Chief powers on the inherent authority of the office of President of the United States. Obama’s administration has, in filings with the courts on different matters related to executive authority, rejected this assertion of inherent power, and based his claims to wartime Commander in Chief powers on the AUMF passed by Congress.

    2. The AUMF only authorizes the government to go after the people who attacked us on 9/11. Even Jesus W. Churchill realized he had to go back and get another one to attack Saddam. It is not a blank check to attack anyone who is vaguely terrorist-ey.

    3. Obama has, quite frequently and pointedly, rejected the term “War on Terror” and specified that we are at war with al Qaeda.

  128. 128.

    4jkb4ia

    June 30, 2010 at 3:41 pm

    @cleek:

    Relevant because the Plame case was a legal case, and went to trial, but EW did not pretend to be a lawyer in that case.

  129. 129.

    Warren Terra

    June 30, 2010 at 3:49 pm

    More disturbing, via Yglesias, she was asked where she was for the Christmas Underwear Bombing attempt – and made a joke rather than provide a solid alibi!

    Joke had to be explained to the questioner.

  130. 130.

    4jkb4ia

    June 30, 2010 at 4:02 pm

    EW said, and I won’t directly quote, that there is a question of why Kagan endorsed her statements on habeas but not on the world-as-battlefield. But EW doesn’t explain why Kagan might have done that. At least there is nothing that I interpret as an explanation in the three paragraphs afterwards.

  131. 131.

    4jkb4ia

    June 30, 2010 at 4:05 pm

    Kagan is avoiding the pathetic traps because they’re pathetic. They have NOTHING.

  132. 132.

    FlipYrWhig

    June 30, 2010 at 4:06 pm

    Lindsey: [Speaking of her rote recitation of the basis for indefinite detention] That’s a good summary. The problem with this war is that there will never be a definable end to hostilities, will there?
    __
    Kagan: [Nodding] That is exactly the problem, Senator.

    What’s funny to me about Marcy Wheeler’s reaction is that if Graham had said “The great thing about this war is that there will never be a definable end to hostilities” and Kagan said, “That is exactly true, Senator,” she could have had the _exact same comment_ about how terribly concerned she is about the implications. Wheeler doesn’t care that they both characterized it as a “problem,” she just cares that they agreed in some fashion. If your reaction to a statement AND its antithesis are identical, something’s screwy about your reasoning.

  133. 133.

    4jkb4ia

    June 30, 2010 at 4:09 pm

    I hope eemom is not trying to say that someone who knows how to read, very well, and is paying close attention to these issues is pretending to be a lawyer. Paying close attention to these issues is something a citizen should do more often.

  134. 134.

    goatchowder

    June 30, 2010 at 4:27 pm

    @Guster: Exactly. Agreeing that it WILL is not the same as agreeing that it SHOULD.

    Whether it should or not is an important debate to have, but it wasn’t part of the discussion she was in.

  135. 135.

    burnspbesq

    June 30, 2010 at 4:28 pm

    @Warren Terra:

    The Chinese restaurant crack was the highlight of the hearing so far.

  136. 136.

    BTD

    June 30, 2010 at 4:34 pm

    @kay:

    thanks.

  137. 137.

    Corner Stone

    June 30, 2010 at 4:39 pm

    @stuckinred: Your obsessions are between you and your therapist. I hope anyway.

  138. 138.

    Corner Stone

    June 30, 2010 at 4:41 pm

    @joe from Lowell: Hey, by the way. How are those conversations with Pinochet going?

  139. 139.

    burnspbesq

    June 30, 2010 at 4:43 pm

    The FDL reaction is pathetically predictable. The FDL crowd wanted a glorious defeat of someone ideologically pure, and instead they are getting the confirmation of someone who gives every sign of being at least pretty good.

  140. 140.

    Corner Stone

    June 30, 2010 at 4:44 pm

    @stuckinred: fap fap fap. Jane…ohhhh…fap fap fap…Marcy…ohhhhh…fap fap fap

  141. 141.

    Mike Kay

    June 30, 2010 at 4:56 pm

    FDL has opposed Kagan’s nomination from the start.

    With whatzhername saying if she was a senator, she would vote against Kagan because of her lack of judicial experience. Of course some of our great Justices had no prior judicial experience (John Marshall, Earl Warren). But when they take a position so stoopid (ie, “fuck history, prior experience required”), then you know how slanted they are and will see any kagan statement in the most unfavorable light.

  142. 142.

    Jim Pharo

    June 30, 2010 at 4:58 pm

    I vote for Emptywheel’s breathlessness. Kagan was plainly agreeing that we will live in a police state for the indefinite future. Should Justice Kagan one day rule that the indefinite police powers claimed by the executive are NOT justified because they are premised on a never-ending war, Sen. Graham would be well within his rights to trot this out to claim that he’d been duped.

    John, you are I are lock-step on so much (including the transcendent importance of Waiting for Columbus), but the truth is that all our policy and opinion elites agree that we are better off with no habeus, no right to be free from unreasonable search and seizure, etc. It’s a done deal — the only way to go back is through something catastrophic…perhaps “second amendment remedies.” Broadly speaking, of course.

  143. 143.

    Mike Kay

    June 30, 2010 at 5:04 pm

    See! See! See!

    We told you she was worse than Bork!

    No justice would be better than this injustice!

    /[fill in the blank]

  144. 144.

    kc

    June 30, 2010 at 5:04 pm

    @cleek:

    i’d love for it to come before the SCOTUS and be defeated.

    So, how does anyone think future Justice Kagan will vote on this?

  145. 145.

    Et Tu Brutus?

    June 30, 2010 at 5:06 pm

    I love the smell of burnt Constitutional Articles in the morning, it smells like… mmm…Victory!

  146. 146.

    kc

    June 30, 2010 at 5:11 pm

    Well, having read the entire Emptywheel post, I have to say I agree with her. I don’t think her reaction needs explaining, Mr. Cole, since she explained it herself pretty well.

    Did anyone else read to the last paragraph of Emptywheel’s post? Just curious.

  147. 147.

    kay

    June 30, 2010 at 5:20 pm

    @kc:

    Yeah, I did. Sorry. I think it’s incoherent. She spends 5 paragraphs implying that Kagan was destroyed by Graham’s “cross examination” (which isn’t what it was, but no matter: that’s for dramatic effect, I guess) and then reaches the conclusion that Kagan endorses Graham’s views. I think.

    I can’t make heads or tails of it. Is she saying that Kagan was duped into providing imprudent answers to Graham’s questions that may come back to haunt her (how, I’m not sure: Graham doesn’t have any authority over a judge) or is she saying that Kagan knowingly ratified Graham’s statements?

    Because there’s a difference. I don’t buy either premise, but I think she should settle on one accusation.

    Is Kagan stupid or evil?

  148. 148.

    MattR

    June 30, 2010 at 5:24 pm

    @kc: I read the whole thing and don’t see how the closing paragraph rationally explains her reaction to the excerpt John quoted. I just don’t see how anyone can think that Graham is setting some kind of trap by getting Kagan to endorse the view that “The problem with this war is that there will never be a definable end to hostilities, will there?” Isn’t that something that pretty much everyone on the left agrees with?

  149. 149.

    Lawnguylander

    June 30, 2010 at 5:29 pm

    @rootless_e:

    Why doesn’t Rahmbama approach getting HCR through the House and Senate just like how I sold my house in 2006?
    NEGOTIATING 10!1!!! They are so stupid!!

  150. 150.

    Mnemosyne

    June 30, 2010 at 5:29 pm

    @agorabum:

    The ideology must lose all luster before a terrorist (who sees himself as holy warrior for God fighting the evil oppressors) calls it quits / gets no new recruits. And as long as the young are passionate and stupid, there are just about always new recruits for stupid, manichean crusades.

    As I was pointing out to people during the whole Israel dustup, you still have idiots blowing shit up in Belfast in the name of the IRA. (Or, as they’re calling themselves, “the Real IRA” because of course Michael Collins would never have gone for a political settlement.)

    This is why the whole “War on Terror” construction was idiotic from the start. Fighting criminal acts of terrorism as a war is about as successful as fighting drug use as a war.

  151. 151.

    General Egali Tarian Stuck

    June 30, 2010 at 5:30 pm

    @kay:

    Is Kagan stupid or evil?

    I for one, sincerely hope she’s evil, in a liberal sort of way.

  152. 152.

    FlipYrWhig

    June 30, 2010 at 5:33 pm

    @MattR: It used to be practically an article of faith that everyone on the left agreed that precisely the problem with the War on Terror phenomenon was that it would never not be true that there were terrorists out there plotting new attacks, thus it authorized too much. If anything I’d think it would be interesting that Graham sounds like he’s agreeing with the idea that there is in fact a “problem.”

    Concocting new litmus tests to validate their own outrage is where firebaggers really outdo themselves.

  153. 153.

    kay

    June 30, 2010 at 5:33 pm

    @kc:

    Did Kagan endorse Graham’s views or was she duped into some tactic agreement by the brilliant Lindsey Graham, and his masterful “cross examination”?

    I think there was a switcheroo midway through that screed, but I lost her, so I don’t know.

  154. 154.

    Uncle Clarence Thomas

    June 30, 2010 at 5:44 pm

    @eemom:

    > and btw Kagan has been kicking licking ass in these hearings.

    Fixed.

  155. 155.

    General Egali Tarian Stuck

    June 30, 2010 at 5:45 pm

    @kay: It seemed to me, and does seem to me, that Wheeler and maybe Graham as well, are still hung up on Bushian terminology, that is and was political in nature. Not really having a literal legal definition or relevance. On the “entire world is a battlefield” soundbite. This can mean many things, depending on who is using it to justify this or that policy or action. But it is a political word, and may mean something so innocuous as a terrorist can be arrested anywhere if they break the law. Or something as wrong as invading a country like Iraq, or another country. The point is, it has no other meaning other than associated with the whims of politicians, and maybe swaying public opinion, say like for something like Iraq. Upon which, other more concrete and tangible concepts come into play, that are legal in nature.

  156. 156.

    General Egali Tarian Stuck

    June 30, 2010 at 5:59 pm

    @Uncle Clarence Thomas: Giddyup there Long Dong Silver

  157. 157.

    eemom

    June 30, 2010 at 6:08 pm

    @Uncle Clarence Thomas:

    you sure live up to your namesake, fella.

  158. 158.

    Mike Kay

    June 30, 2010 at 6:09 pm

    Reading through all the comments, I’ve concluded Marcy has made her case.

    Kagan should withdraw her nomination.

    It was a mistake to nominate anyone assoicated with history’s greatest monster (Bill Clinton).

  159. 159.

    General Egali Tarian Stuck

    June 30, 2010 at 6:13 pm

    @General Egali Tarian Stuck:

    Maybe Graham was trying to trick Kagan into endorsing Bush’s kidnap and rendition program in far flung places with his example of arresting terrorist’s in those places. Of course, arresting is not the same as kidnapping. Most of us and the world see a battlefield as a piece of earth that is controlled by armed combatants, where whatever law exists, those combatants administer.

    But a battlefield to Dick Cheney, was anywhere, even a place where a sovereign country controls the law with a civilian legal system of it’s own, that he thought bad people were, even in downtown Paris. Where America had a right to circumvent that country’s laws in the cause of protecting America. I am rambling, but I think this was what Graham was fishing for, but Kagan mostly just didn’t answer him, citing her position currently as Sol. General, which was likely smart of her.

  160. 160.

    DickSpudCouchPotatoDetective

    June 30, 2010 at 6:13 pm

    Yes, it’s my new handle. Get used to it.

    Hopefully, the start of a whole new career for me. A potato gumshoe with a thick skin.

  161. 161.

    eemom

    June 30, 2010 at 6:16 pm

    Can’t comprehend why anyone would want to analyze anything about Elena Kagan through the medium of Marcy Wheeler’s whatever — instead of just watching/listening to/reading the transcript of the goddamn hearing and drawing their own conclusions.

    Much as I’ve enjoyed this thread, it really has been a colossal waste of pixels (or whatever you call this stuff).

  162. 162.

    Mike Kay

    June 30, 2010 at 6:17 pm

    Dear President Obama, I oppose the nomination of Elena Kagan to the Supreme Court, and I urge the Senate to reject it.

    Elena Kagan should be rejected by the Senate because she stands for an extremist view of the Constitution and the role of the Supreme Court that would have placed her outside the mainstream of American constitutional jurisprudence in the 1960s, let alone the 2010s.

    Elena Kagan’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, and writers and artists would be censored at the whim of government.

    America is a better and freer nation than Elena Kagan thinks.

    No justice would be better than this injustice.

    The woman who worked for DLC centrist Bill Clinton does not deserve to sit on the Supreme Court of the United States.

  163. 163.

    4jkb4ia

    June 30, 2010 at 6:20 pm

    (It is time for the Cardinals to think seriously about another fifth starter) (Thinks hopefully of Cliff Lee) (Pay the money)
    (I am aggravated because I was pumped up for the FCIC hearing where Cassano was to testify and the whole AIG-GS matter was to be examined and because of THIS hearing I didn’t pay enough attention to understand it) (Also there are 518 pages of documents for the record)

    I think that EW wrote that Graham trapped Kagan with her own words to make it look like she was agreeing with him and his views, but Kagan could have fought back more strongly as opposed to the formulaic “that was my position as SG”. Kagan also helped to make the trap when she said that DOD helped to shape the government view, because once she said that, and she hinted that she didn’t agree, that plays into “Kagan is anti-military”. (Me)

  164. 164.

    kay

    June 30, 2010 at 6:23 pm

    @General Egali Tarian Stuck:

    Not really having a literal legal definition or relevance. On the “entire world is a battlefield” soundbite.

    Well, yeah, Stuck, and Elena Kagan is a smart lawyer, and words have specific meanings in that context, in her world, and she’s not going to get into a debate with Lindsey Graham on what “hostilities” mean.
    That would be really dumb. She answered completely, but she left plenty of room for a specific set of facts or a different role, like that of an advocate or that of a judge.
    Analyze what she says, great, but DECIDE. Are we talking about legal meaning? Some broader policy preference she may or may not have? Her work representing the United States? Her general view on terrorism?
    I can’t tell any of those things from what I read, personally, but it would be helpful to decide on the charge(s) before we convict her.

  165. 165.

    General Egali Tarian Stuck

    June 30, 2010 at 6:23 pm

    @4jkb4ia:

    (It is time for the Cardinals to think seriously about another fifth starter)

    Maybe Pee Wee Herman is available.

    Reds fan here. We get Volquez back in a couple of weeks for our new starter. heehaw!

  166. 166.

    kay

    June 30, 2010 at 6:26 pm

    @eemom:

    It’s the only time I’ve read her. I read the complaint in Plame, and listened to Patrick Fitzgerald, and something on Ari Fleisher’s testimony, and that was about it.

  167. 167.

    General Egali Tarian Stuck

    June 30, 2010 at 6:27 pm

    @kay:

    but it would be helpful to decide on the charge(s) before we convict her.

    Firebagger Court has no jurisdiction here, or anywhere other than certain realms of the intertoobs.

  168. 168.

    kay

    June 30, 2010 at 6:32 pm

    @General Egali Tarian Stuck:

    I could be misreading it, but it always comes off as fear to me, gut-level. Lindsey Graham reels off a couple of coherent questions and it’s panic time. He only looks good here because the rest of them are mentally deficient :)
    It’s as if any opponent has to be met with overwhelming force, or we-all have failed in our mission. It doesn’t matter if it’s the WH press corps, Sarah Palin, or some idiot teabagger. It’s all war, all the time.
    I’m confident Kagan can hold her own with Senator Graham. I wasn’t sweating bullets or anything.

  169. 169.

    Randy P

    June 30, 2010 at 7:04 pm

    @Brachiator: And apparently has simultaneously officially stepped down as CENTCOM commander.

    Lieutenant General John R. Allen became Acting Commander, United States Central Command, on 30 June, 2010.

    During this whole McChrystal thing I’ve been finding it interesting to compare the CENTCOM website with coverage in the mainstream media.

  170. 170.

    Randy P

    June 30, 2010 at 7:06 pm

    @Mike Kay: WTF was that? Is that a parody of something? Who, exactly?

    OK, never mind. I was reading the tail of the thread backward, so I didn’t see your long buildup to that explosion.

  171. 171.

    General Egali Tarian Stuck

    June 30, 2010 at 7:12 pm

    @kay: It’s an election year and not far off now. This is the GOP’s have to election, after going under two in arow in 06 and 08. They don’t want to go under for good as a viable party, and are just making sure the frothing tea bag vote keeps it’s lather up till election day.

    When it comes down to it, I think they probly like Kagan as much as any lib, and she is replacing an existing liberal vote. If it wasn’t mid term election time, they wouldn’t be making such epic asses out of themselves. It would just be normal ass making.

  172. 172.

    mclaren

    June 30, 2010 at 7:20 pm

    I guess the liberals want Elena Kagan to stand up in front of the congress, tear her bra off, and start quoting Eugene Debs. “If there is an under class, I am of it — as long as one person is in prison, I am not free!” And yadda yadda.

    It’s entirely clear from looking at Kagan’s record that she’s infinitely better than any nominee we’ve had in at least 10 years. But this just isn’t good enough for the liberals. They want perfection. They want Emma Goldman.

    Out here in the real world, with psycho teabagger Republicans publicly trashing Thurgood Marshall (!) in the confirmation hearings, it’s a good idea to be a little circumspect and give deliberately vague answers to questions from hostile senators. But the liberals don’t seem to get that.

  173. 173.

    Cathie from Canada

    June 30, 2010 at 7:21 pm

    On the larger question of Kagan’s fitness for the Supreme Court, I think these hearings have shown her to be an effective leader who will help the court achieve consensus, likely in somewhat-more progressive directions.
    She is going to be spending the rest of her life working with eight people. In that setting she will be able to demonstrate the kind of sustained leadership which Roberts cannot. Her analysis of cases will be based on such logical, reasonable, and constitutionally-based arguments that the weaker minds she is working with — like Roberts, Alito, and Thomas — will simply find themselves unable to disagree. As well, I expect she is going to be able to convince these men to hear cases that otherwise they might have turned down. She will attract the best law clerks in the nation, and these people will also be able to write rings around the other clerks. All in all, a powerful and influential choice.

  174. 174.

    rootless_e

    June 30, 2010 at 7:32 pm

    @mclaren: The fact is that they prefer to lose.

  175. 175.

    General Egali Tarian Stuck

    June 30, 2010 at 7:38 pm

    @Cathie from Canada: LOL, I hope she becomes a sort of genius pit bull manhandler you envision, but Roberts and Scalia, despite their winger asshattery, are no intellectual slouches. It is Kennnedy she needs to work on. I doubt she will sway much, the head case Thomas, nor tight ass Scalia all that much. And Alito is a block head ideologue that truly believes the Unicef Trains will run on time in America, once the Aristocracy he craves becomes the law of the land and provides all that any peasant should need for a happy life.

    But there is potential for more from her, I would agree.

  176. 176.

    eemom

    June 30, 2010 at 7:51 pm

    @Cathie from Canada:

    wow. Would you be willing to export some of that common sense to the United States, or would that run afoul of NAFTA or something?

  177. 177.

    burnspbesq

    June 30, 2010 at 8:57 pm

    @eemom:

    Canada has its own wingnut problems. It’s a little selfish of us to expect them to solve ours as well.

  178. 178.

    gerry

    July 1, 2010 at 1:15 am

    Whatever you do, please keep going after the firebaggers! They are history’s greatest monsters! We must hate them!

  179. 179.

    Mike Kay

    July 1, 2010 at 3:30 am

    @gerry: there’s no difference btwn bush and gore firebaggers and teabaggers.

  180. 180.

    rickstersherpa

    July 1, 2010 at 8:56 am

    I really appreciate Glenn Greenwald, and Marcy is pretty much following Glenn’s lead and doctrine here, and he performs a very necessary function. Even when I disagree with him, it makes me think. And I do agree that the Obama administration has pretty much been a continuation of the policies of Bush’s second term on the war on terror, when Condi, Gates, and Hayden walked backed from Cheney, Rumsfeld, Addington, etc. school of revenge and torture and wars of agression in reaction to 9/11.

    What Al Qaeda and its allies are more than a criminal gang, at least at the moment; its objectives are not similar to the Mafia or the Mexican drug lords (who after all primarily just want to make money and if anything keep the current political and economic structure that works so well for them.) It is an insurgency, and like all insurgencies in history, it is a particularly dirty, nasty war because insurgents swim in a civilian sea. And they can last a long time. (Ireland has been a some level of insurgency since the reign of Elisabeth I; right now we have quiet period, but whether it will last with the current economic downturn, I have my doubts. Unemployed young men make great “soldiers” and a declining economic pie is much harder to divide between the two tribes). India has couple of nasty insurgencies, only one that involves us in Kashmir as it involves groups aligned with Al Qaeda and the Taliban and the Pakistani Intelligence service (who are of course are our best “frienemies” in the world I guess). The other, involving lower caste Hindus, has no world wide resonance.

    It is very easy for Glenn Greenwald and FDL to blast Obama as Bush III and for not closing Gitmo and releasing all the detainees and other polices. They of course won’t be voted out of office after the next terrorist attack that follows that event. If the left is unhappy that Obama is a politician, then it is something they definitely have to get over. Why has Obama kept them? I suspect that he really does want to prevent attacks and also is painfully aware of the downside political risks of successful attack. (The mass movement to Scott Brown occurred after the XMAS attack and the Obama’s administration initially feckless and lackadaisal response (a pattern unfortunately repeated after the BP explosion and spill) some of the polling I read indicated that it was the decisive event helped him win. The drift to Bush III national security policies accelerated after that date.

    I also have a different take on the American in Yemen, who is apparently organizing missions against the U.S. and who is apparently outside the power or the will of the Yemeni Government to arrest. Glenn thinks, well, tough, but he can only lose his life or liberty after due process of law. I disagree, as I think that since this guy is making war on us, from a place over which no sovereign has control, then as a matter of self-defense, we can kill him. Likewise the American in Pakistan making videos and plans from the Pakistan Tribal zone for OBL and Zawhari.

    Books have, and will be written about what “we” are currently in, but it definitely something more than a “police” problem. It is an insurgency, based in an arising from Islam, but this is somewhat an accident of fate in that countries with extreme disparities of wealth, dominated still by feudal structures and families which limits opportunity of advancement into the middle and upper class (Pakistan is the best example, but basically the whole region from Morocco to Pakistan fits under this), it is aggreived by the dominace foreigners and unbelievers who control, directly or indirectly, much of the mineral wealth of the region. Add a hybrid ideology mixing one part Islam, one part Marxism, and one part facism to jusfify violence and the fact we have been sticking our nose in the middle east for 60 years without to much concern about how many people we or our friends bomb, shoot, torture, and little concern about improving the life of the average joe has made it easy to make us enemy number one. And political mass movements are always looking for enemy, whether it is Obama for the Tea Party, the U.S. for Chavez, the Great Satan for the mullahs of Iran, or the Mullahs of Iran for the Neocons. Al Qaida was making war on us before we invaded Afghanistan or Iraq. Our blunders in the first place, and attacking the second, has made the situation worse. But I am afraid this is not a game where we have the only vote to quit, and we progressives better be careful that we don’t appear indifferent to the defense of our fellow citizens.

  181. 181.

    liberal

    July 1, 2010 at 10:11 am

    @Cathie from Canada:
    Garbage. Diane Wood would have been a much better appointment in the terms you’re using. She has a proven record of building consensus and convincing those with whom she has large ideological differences. All you can point to is a bunch of fairly useless hearings. (IIRC Kagan herself, in the past, has essentially labeled them as such.)

  182. 182.

    brantl

    July 1, 2010 at 10:11 am

    The problem in all of this Supreme-Court-Confirmation-process has come down to a kabuki of the opposition trying to get the candidate to say something that they can seize on and distort, while the candidate tries to say as little as possible, while putting themselves in the best light, regardless of what attempts can be made at distortion.

    This all resolves into the whole procedure turning into a prisoner-of-war interrogation, with a few extra rules. So everybody tries to extrapolate what someone as important as a Supreme Court Justice thinks about the law.

    It should get right down to how they feel the laws as currently exist should be applied (based on the idea that someone good enough in the myriad measures of what would make a good Supreme Court Justice wouldn’t out and out lie, like Scalito and Roberts did), (as you can’t predict how you’d respond to laws that don’t exist yet), so as to know what effect they will have on OUR WHOLE FUCKING NATION. But that offends each sides sensibilities, so it never happens. Which exacerbates the extrapolation.

  183. 183.

    General Egali Tarian Stuck

    July 1, 2010 at 10:18 am

    @liberal: I am sure Wood would have made a fine SC justice. But “garbage”? The hearings don’t shed a lot of light on how a nominee will vote in future cases, but they are a good showcase for the nominees personality, and how they interact under pressure. Kagan will do just fine in that department. “garbage” geesh dude, get a grip.

  184. 184.

    liberal

    July 1, 2010 at 10:34 am

    @mclaren:

    I guess the liberals want Elena Kagan to stand up in front of the congress, tear her bra off, and start quoting Eugene Debs. “If there is an under class, I am of it—as long as one person is in prison, I am not free!” And yadda yadda.

    Who are these “liberals” you refer to? FDL is equivalent to all “liberals”?

    It’s entirely clear from looking at Kagan’s record that she’s infinitely better than any nominee we’ve had in at least 10 years. But this just isn’t good enough for the liberals. They want perfection. They want Emma Goldman.

    BS. What record? I’m guessing she’ll be a decent judge, but I’m not sure she’ll be as good as, say, Sotomayor, who I’m pretty sure was nominated in the last 10 years. She certainly won’t be as good as Diane Wood would be. And because she doesn’t have a record as a judge, there’s a risk that she’ll be further to the right than predicted. Yes, the risk isn’t all that large, but it’s there. (The advantage she has over Wood is that she’s (IIRC) 10 years younger; over Sotomayor, that she’s not a diabetic who smokes.)

  185. 185.

    kay

    July 1, 2010 at 10:34 am

    @General Egali Tarian Stuck:

    Besides the fact that we have a very recent and relevant example of people reading way too much into a nominee’s statement at confirmation hearing, depending on their ideological leaning:

    Here’s what Sotomayor said:

    “I understand the individual right fully that the Supreme Court recognized in Heller. I understand how important the right to bear arms is to many, many Americans.”

    Here’s the interpretation:

    Cornyn referenced Sonia Sotomayor’s confirmation hearings last year and her statements on the second amendment. During her hearings, Sotomayor said the amendment conferred a right to possess a handgun for lawful purposes. According to Cornyn, “[Sotomayor] then promptly, one of her first decisions on the Supreme Court joined an opinion that said their is no individual right. That’s very troubling.”

    Saying she “understands” is different than saying she endorses, or intends to ratify that interpretation. She comprehends the basis for the opinion. That doesn’t mean she agrees with it, or would rule that way, and, she didn’t.

    And the Senator knows that now, and knew it then.

  186. 186.

    liberal

    July 1, 2010 at 10:38 am

    @General Egali Tarian Stuck:
    Yes, “garbage,” because the evidentiary value of hearing chitchat for “ability to convince colleagues and build consensus” is about zero.

    Of course, all things being equal, being bright and quick on one’s feet would be better than not if that ability is what you’re looking for, but it’s weak tea.

    Consensus building is a specific trait, and while one could argue that Kagan has it because she was a successful dean, we’re arguing about something even more specific: the ability to convince right-wing ideologues on a high Federal court to join a consensus you’re trying to build. Kagan’s record as law school dean is evidence, but not very strong evidence, of that. And the hearings themselves are pretty much useless as evidence.

  187. 187.

    liberal

    July 1, 2010 at 10:40 am

    @kay:

    Besides the fact that we have a very recent and relevant example of people reading way too much into a nominee’s statement at confirmation hearing, depending on their ideological leaning:

    IIRC Roberts said he had a lot of respect for precedent. If so, that’s the best evidence that these hearings are pretty much useless (which IIRC Kagan said a long time ago, much to her credit).

  188. 188.

    kay

    July 1, 2010 at 10:52 am

    @liberal:

    I take your point, but I don’t think they’re “useless”.

    Honestly, I don’t really want a judge with a rigid, preordained ideology.

    I’m not a conservative.

    Wel, I do, but I’d prefer it if the judge shares my interpretation.

    Senator Leahy followed up with a basic question: “Would you have an open mind on the Supreme Court in evaluating whether Second Amendment rights should be considered fundamental rights and thus applicable to the states?”
    “Absolutely,” she said.

    We’ll have to give her the benefit of the doubt and say she had an open mind and went the other way :)

    This would be a more honest discussion if both sides would stop pretending they don’t want judges to rule “their way”.

    IMO, both sides are depending on their reading of the relevant law and calling that The Rule. It’s okay with me, but can we stop acting like we’re all just reading the text and applying it? We’re not.

  189. 189.

    General Egali Tarian Stuck

    July 1, 2010 at 10:59 am

    @liberal:

    Consensus building is a specific trait, and while one could argue that Kagan has it because she was a successful dean, we’re arguing about something even more specific:

    Kagan’s potential strength is that she hasn’t been a judge, and that will shake up the wingers and the court in a new way with a different perspective and energy. Wood would not do this, even though she has a rep also of building consensus. But she comes from the same staid world as the rest of the SCOTUS, that is familiar to them.

    I am pleased to have a different kind of force on the court. And I reject claims she will pull the court to the right. She is not an ideologue, but neither am I. I think she is oriented to the liberal side, but will fairly interpret the law. You may have a different measuring stick.

  190. 190.

    General Egali Tarian Stuck

    July 1, 2010 at 11:07 am

    And I will add. That while I would have also been pleased if Wood had been the nominee, and while she has the rep of a degree of consensus building, she also has a rep as being something of an ideologue in her own right, albeit from the left. So what happens usually when hard right ideologues meet up with left wing ideologues? Likely more sparks than consensus, I would suspect.

    edit- Oh, and what kay said, also too.

  191. 191.

    kay

    July 1, 2010 at 11:28 am

    @General Egali Tarian Stuck:

    I’ve given this a ridiculous amount of thought, because I’m surrounded by conservative lawyers and we spar all the time.

    There’s the text of the Fourth Amendment. Then there’s something like 13 recognized exceptions from case law, more than a few of which I disagree with. So, do I “respect” precedent and expect it to be upheld in each and every case?

    Hell, no. I think they should overturn a bunch :)

    These are the problems you run into when you start making pronouncements, as a liberal. Conservatives run into all kinds of problems too, with their insistence that they’re following a rigid rule, and they can tie themselves up in ludicrous knots defending Justice Roberts overturning things willy-nilly, but they’re not really my problem, now are they?

  192. 192.

    Corner Stone

    July 1, 2010 at 11:35 am

    @mclaren: What the hell are you talking about?

  193. 193.

    Corner Stone

    July 1, 2010 at 11:36 am

    @rootless_e: Yeah. I can’t claim to speak for everyone, but I hate getting the results I agitate for.

  194. 194.

    Alan in SF

    July 1, 2010 at 12:31 pm

    Bottom line here is that President Obama has adopted a policy of indefinite detentions without charges or trial, as well as the right to assassinate American citizens anywhere in the world without even a modicum of due process, and is now nominating a Supreme Court justice who supports that view, and commenters on this site think Marcy Wheeler is the problem.

  195. 195.

    Mike Kay (Team America)

    July 1, 2010 at 5:33 pm

    Diane Wood is toooooooooooooooooo old.

    There’s already tooooooo much polygrip on the court. Hell, ya might as well appoint Abe Vigoda.

    Plus how can anyone prefer Wood who clerked for Nixon appointee harry blackmun, instead of Kagan who clerked for Thurgood Marshall and Abner Mikva?

  196. 196.

    Phoenix Woman

    July 1, 2010 at 6:34 pm

    EW’s response:

    http://emptywheel.firedoglake.com/2010/07/01/even-the-crusades-werent-forever/

  197. 197.

    BruinKid

    July 2, 2010 at 12:58 am

    @Flitterbic: Unfortunately it had to come against my Bruins. Well, South Carolina can now be proud of their TWO NCAA Championships (the other came in women’s T&F in 2002). UCLA, well, we’ll just have to wait for #107 until next year.

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