Would Justice Kagan continue bowing to her 'boss'?

When President Obama nominated Elena Kagan to the Supreme Court, he heralded her as "an acclaimed legal scholar with a rich understanding of constitutional law." He, however, has increasingly and harmfully demonstrated that he himself does not fit the description, thereby invalidating his praise.

With her confirmation hearing due to begin June 28, Kagan no longer believes, as she wrote in 1995, that "these hearings have presented to the public a vapid and hollow charade (supplanting) legal analysis." But, on being confirmed as solicitor general last year, Kagan said she was "less convinced than I was in 1995 that substantive discussions of legal issues and views, in the context of nomination hearings, provide the great public benefits I suggested" (Wall Street Journal, May 16). Having reviewed parts of her record, I'm not surprised.

I very much hope, but doubt, that a senator will ask her a very substantive question about a startling friend-of-the-court brief she filed to the Supreme Court in 2009, in Pottawattamie County v. McGhee. In "Elena Kagan's Shaky Record" (the Boston Phoenix, April 19), Kyle Smeallie and the renowned civil-liberties attorney Harvey Silverglate (co-founder of FIRE – Foundation for Individual Rights in Education) described the case and how this probable Supreme Court justice defines quintessentially fundamental due process:

"Two Iowa men were convicted of a 1978 murder. They served 25 years before finding out that prosecutors had coerced key witness testimony and withheld exculpatory evidence. After the Iowa Supreme Court, in 2003, vacated one man's conviction and sentenced the other to time already served, the two men sought damages for violations of their constitutional rights.

"The question of whether prosecutors could be held liable for such pretrial misdeeds went to the Supreme Court." In her friend-of-the-court brief, "Kagan championed 'absolute prosecutorial immunity' and asserted that holding these prosecutors accountable would have 'untold social costs.'"

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Silverglate adds a vital question that she should be asked on June 28 about her insistence on "absolute prosecutorial immunity":

"Such as (immunity for not) stopping prosecutors from convicting the innocent?"

Since the Constitutional Convention of 1787 – as now in the resultant United States – an intensely controversial question that Kagan, if confirmed, will confront is the overreaching of presidential powers. George W. Bush, for example, decreed that terrorism suspects in American custody could be held as "unlawful enemy combatants" indefinitely without access to our federal courts. In 2008, with regard to prisoners at Guantanamo Bay, the Supreme Court disagreed, ruling that they have the constitutional right, through habeas corpus, to challenge their confinement here in our courts.

However, that controversy is still very much alive concerning terrorism suspects imprisoned at the U.S. Bagram Air Base in Afghanistan. In April, the BBC reported that nine Afghan witnesses claimed they had been tortured in a secret U.S. prison on Bagram after having been captured by American forces ("Red Cross confirms secret Bagram prison," jurist.org. May 11).

Now, on May 21, the influential District of Columbia Court of Appeals has strongly supported the Obama administration's insistence that our prisoners at Bagram are unlawful enemy combatants without constitutional capacity to challenge the conditions of their confinement. During a previous Bagram case at the high court, Solicitor General Kagan pushed successfully to delay a lower federal report ruling defying Obama that those prisoners actually do have the right to be in our courts. That first decision has now been reversed.

As she said in a September 2009 visit to Harvard Law School, where she has been dean, her "ultimate boss is President Obama" (The Phoenix, April 16). Since the president fully maintains that our prisoners at Bagram are without hope in our Constitution, they can expect no dissent from a Justice Kagan, as this case continues, even if the torturing of our prisoners in those secret cells continues with the approval of her boss.

Another indication of Kagan's deference to President Obama's echoing of the Bush-Cheney administration's side-stepping of the Constitution's separation of powers is the report by Charlie Savage in the New York Times (May 7) that "after Mr. Obama selected her to be his solicitor general, she ... took a leading role on a legal team that has sought to suppress lawsuits using the state secrets privilege."

This suspension of our vaunted rule of law is also a continuation of the Bush-Cheney heritage of using "state secrets" as a bludgeon to shut down court cases brought by citizen objectors to presidential skewering of the Fourth Amendment with warrantless surveillance of their phone calls and e-mails, as well as squashing lawsuits by victims of CIA "renditions" to other countries known for torturing their prisoners.

Under Obama, these "renditions" continue under CIA Director Leon Panetta – but to whom and where our prisoners are sent, this so-called "transparent" administration does not tell us.

On June 28, will any senator on the Judiciary Committee ask Kagan her constitutional reading of "state secrets," "renditions" and her boss' open intent to hold in permanent imprisonment those terrorism suspects that can't be tried anywhere in our system because "evidence" against them was extracted by torture? During her solicitor general confirmation hearing, she said she agrees on permanent detention (CommonDreams.org, May 9).

Also, with so many young Americans not knowing why they are Americans, what does she, the former dean of the august Harvard Law School, recommend as a crucially needed American education reform that would increase the number and quality of civics and American history classes? As her possible future colleague, Justice Anthony Kennedy, has said: "The Constitution needs renewal and understanding each generation, or else it's not going to last."

The president who appointed her also needs to pay attention to that warning. The Congress, too, needs remedial education on who we are as Americans.