This Will be Obama’s Legacy

by Alexander Cockburn, April 22, 2010

Jeffrey St. Clair contributed to this story.

With the impending departure from the U.S. Supreme Court of Justice John Paul Stevens at the age of 89, we lose one of the nation’s last substantive ties to Great Depression and to the effect of that disaster on the political outlook of a couple of generations.

Stevens’ father, Ernest, owned a famous hotel in Chicago – the Stevens, with 3,000 rooms, now the Hilton. It was built in 1927, and there young John Paul met Amelia Earhart, Charles Linbergh and Babe Ruth.

But by 1934 hard times took their toll. The hotel went bankrupt. John Paul’s father, grandfather and uncle were all indicted on charges that they’d diverted money from the Illinois Life Insurance Co. (founded by the grandfather) to try and bail out the hotel. The uncle committed suicide, and Stevens’ father was convicted. The Illinois Supreme Court exonerated him two years later, stating, “there’s not a scintilla of evidence of any concealment or fraud.”

Thus did John Paul, still in his teens, acquire his life-long skepticism of police and prosecutors. Between the year  he went on the Court (put up by Gerald Ford in 1974 on the recommendation of Ford’s attorney general, Chicagoan Edward Levi), and 2010,  John Paul Stevens voted against the government in criminal justice and death penalty cases 70 per cent of the time. Only one justice – William O. Douglas, whose seat Stevens took over – served longer on the Court. When Justice Harry Blackmun retired in 1994, Stevens became the senior associate justice and, thus, able to assign opinions to the justice of his choice. Stevens played his field expertly, time and again maneuvering the swing vote – Anthony Kennedy – onto his side by assigning him the task of writing the opinion.

The most famous case of this sort was the 2003 decision Lawrence v. Texas, which became the equivalent for gay rights as Brown v. Board of Educationfor racial discrimination. Among other Stevens-written or Stevens-influenced landmark opinions: Atkins v. Virginia, where Stevens successfully won the necessary majority for the view that executing the mentally retarded constituted cruel and unusual punishment.

Stevens was also the Court’s most powerful opponent of the so-called doctrine of unitary executive power, which takes the view that the U.S. president and his executive wield constitutionally unchallengeable power. Stevens – again, a true conservative – opposed all such assertions and extensions of dominance by the executive. The relevant case was Hamdan v. Rumsfeld. Stevens wrote the majority opinion that Bush Jr. could not unilaterally set up military commissions to try detainees in Guantanamo.

Stevens, the last protestant on the high court, described himself as a conservative, and in one sense he was, because he tried to preserve the spirit of the progressive Warren court through the decades-long swing of the court toward the right, both among the Republican nominees and the ones put up by Clinton (Breyer and Ginsburg) and by Obama (Sotomayor). As Stevens himself has said to law professor Jeffrey Rosen, “Including myself, every judge who has been appointed to the Court since Lewis Powell [1971] has been more conservative than his or her predecessor.”

As Obama and his counselors ponder potential nominees, the air is filled with counsel that Obama should avoid a protracted fight and should pick “a moderate” – i.e., pro-business, pro-government – nominee, like Elena Kagan, 49, now solicitor general and in earlier years head of the Harvard Law School, where she hired Jack Goldsmith, head of the Office of Legal Counsel in the Bush administration, where he was intimately tied to the torture and detainee abuse scandals. He's Harvard's version of John Yoo. Before that, Kagan served as Clinton’s deputy domestic policy advisor, in which capacity she oversaw, among other assignments, welfare “reform.” One of her colleagues at the White House at that time was Christopher Edley, now the Dean at Boalt, the law school at UC Berkeley. Edley says of Kagan that her politics were “center to center right.”

In the Clinton administration, Kagan helped formulate the Democratic equivalent of what became, in the subsequent W. Bush years, the assertion of unitary executive power. There’s zero evidence that Kagan would do anything to redress the right-wing tilt of the Court and plenty that she might exacerbate it, in the areas of executive power, civil liberties, and assertion of presidential war powers. In her confirmation hearings as solicitor general, she so entranced the right with her proclamations in favor of the War on Terror, indefinite detention, and against any pursuit of war crimes investigations, that Democratic Senator Amy Klobuchar (Minnesota) said, “it sounded like she was getting a standing ovation from the Federalist Society.”

Kagan is the worst possibility thus far to surface, but the others potential nominees are  scarcely inspiring. There’s the mainstream liberal Diane Wood, who sits the Federal Appeals Court in Chicago, and Merrick Garland, a neoliberal Clinton appointee in the mold of Justice Steven Breyer, corporate America’s judicial representative on the Court. (Stevens, by contrast, began his legal career as an anti-trust lawyer.) Garland, another Chicagoan, is now on the Court of Appeals in the District of Columbia.

These are the three frontrunners. The left has put up no preferred nominee, expressing concerns that the Republicans might filibuster. So, why not provoke just such a filibuster with a decent candidate? This appointment, remember, is Obama’s last chance to vindicate the hopes of the left that our African-American president is, at least, as liberal as Gerald Ford and would leave as enduring a legacy as Stevens. Come November, the Democrats will lose control of the House and Obama’s legislative powers will be extinguished, unless he goes into full Clintonian triangulation. It is now, and only now, that Obama can actually install a nominee with the ability to defend and advance progressive interpretations of the Constitution over the next 40 years.

Who could the left put up, as an assertion of what a truly progressive justice might look like? How about Steven Bright, of the Southern Center for Human Rights, the country’s leading anti-Death Penalty litigator from Kentucky? Or, David Cole, professor of law at Georgetown? Or, Pamela Carlan, at Stanford, a former counsel for the NAACP  and openly gay? Or, Jonathan Turley, at George Washington, who is particularly strong on civil liberties and the environment? Turley defended Sami al-Arian, the Rocky Flats workers, attacked warrantless wiretapping. Or, within the administration, Harold Koh, Korean American and one of the principle legal opponents of the torture policies of the Bush years? Koh was originally a Reagan appointee to the Office of Legal Counsel. Turley says Koh is the closest we have to Justice Brandeis.

There’s one more name that has been nervously circulated among progressive circles, that of Elizabeth Warren, currently head of the Congressional Oversight Panel on the banking bailout. Warren originally hails from Oklahoma and a professor at Harvard Law School. Warren is as close as we can now get to Stevens’ economic populism and has been eloquent on the topic of corporate skullduggery and on the pro-bank tilt of the bailout. She would, actually, be a shrewd choice for Obama, because it would turn the Supreme Court confirmation hearings into a debate on  economic justice, consumer protection and regulation of Wall Street  where Warren’s Republican opponents be forced to take the side of the rich, at a moment when the rich are not popular with a large number of Americans.
Don’t hold your breath.

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