I know this has nothing to do with screaming about how Obama let you down or debating Elena Kagan’s sexual orientation, but Eugene Volokh has reviewed Kagan’s body of scholarly work and has deemed it to be quit substantial in quantity for the period of time she has spent as a legal scholar, quite important and relevant in the field (having been cited frequently), and of an “exceptional” quality and focused on real-world issues, “as it should be, and as it too rarely is.”
It would be absolutely pointless for me to read Kagan’s works, because I won’t understand it at all, but this is the kind of analysis I really appreciate.
*** Update ***
Here is another good piece by BTD.
Mike Kay
She’s Hermann Göring in drag!
Will
Most of the legal scholarship I’ve come across hasn’t been that hard to understand. It’s not quantum physics.
Dork
Kids say the same thing about Dr. Suess’s works, too. Shall we assume she eats green eggs and ham?
trollhattan
Begone with your pesky factyfacts! I want to know about her Subaru brochures (ya know, cuz she doesn’t drive and all…).
Mike Kay
Just for fun, watch Lawerence Lessig call glentard out as a liar (yes, I know, shocking).
http://www.msnbc.msn.com/id/26315908/#37074947
Mart
Greenwald will say this is more proof she is a closet righty as according to Wikipedia… “Volokh is a libertarian-leaning conservative.”
The Moar You Know
Response in 3…2…1…
Volokh = Obamabot.
Da Bomb
Yes, John. That nice and all…
But is she a ghey? Does she give the ghey to people?
Does she befriend people with her ghey? And I heard she smokes cigars while galvanting around with black men that look like Steve Urkel(aka Obama). A friend from Harvard pass on that little tidbit.
My (Harvard, with all knowing ghey-dar)friend also inform me she is teh ghey, likes rainbows and flannel colored shirts. Also. too.
Bubblegum Tate
…they’ll have nothing to do with her confirmation hearings.
Zifnab
Damn you, John Cole, and your pernicious liberally-biased FACTS. What have they ever done for our country?
Joseph Nobles
@Mike Kay: Yes, it is quite fun to watch Lessig lie about what Greenwald wrote as he calls Greenwald a liar.
taylormattd
Don’t worry, Paul Campos has already assured us that Vololkh’s analysis is garbage.
Not because of the content of her articles, but because they were published by universities at which she works or used to work.
And apparently this means those articles are clearly without merit. (?)
Also, it helps Campos to completely ignore the fact that this woman is Solicitor General.
General Egali Tarian Stuck
@Da Bomb: I think if you went to Harvard you are allowed to be gay. I will consult the FSM, to confirm.
John Cole
What is it with you all and Greenwald?
BTD
Her 2001 law review article on Executive power is fantastic and progressive.
For me it is the best evidence that Kagan is a progressive/liberal of the New Deal school.
I wrote about it here.
That said, I can not resist a tweak – making league with Eugene Volokh? Is that like agreeing with Ed Whelan?
Midnight Marauder
WHY IS ELENA KAGAN ONLY A LESBIAN AT HARVARD?! WHY CAN’T SHE BE A GAY EVERYWHERE?!
Da Bomb
@Joseph Nobles: So you refer to Glenzilla’s own article refuting what Lessig said instead say another source not connected to either party.
RIGHT…
Because whatever Glen says is golden.
And we are supposed to be Obot cultists, who follow dear leader blindly?
No irony there.
DougJ
So what? She’s not a risk taker, she’s too elitist, she’s a crypto-Bushie.
This changes none of that.
MikeJ
@taylormattd: Campos used to annoy me until I figured out that americanneocon was the house troll in the comments and Campos is the house troll in the posts.
Mike Kay
@Joseph Nobles: ya know, there’s an amazing resemblance btwn glen and roy cohn.
BTD
@John Cole:
Heh. One thing though, Greenwald is truly wrongheaded on Kagan’s 2001 Harvard Law Review article.
General Egali Tarian Stuck
@Joseph Nobles: If it was a lie, it was one of omission. When GG declared emphatically, that Kagan was a total blank slate that over twenty years had managed to not leave one centilla of record on what she thought about law and the constitution. I would call that a lie of commission. Either that ,or attorney GG is a dumb person, and I do not think that in the least.
Matt
@Joseph Nobles: Don’t you get it? GG’s haters have already preempted your argument. He wasn’t supposed to write anything on his blog about that appearance, and we weren’t supposed to read it.
jl
I see Cole noticed the abyss beginning to stare back, and stepped away. Thank goodness.
t jasper parnell
Here is a nice discussion of Kagan’s career with links to some of her texts. Including the justly famous Private Speech Public Purpose.
Face
@John Cole: Nobody likes to read a 400,000 word opus on the abuses of the Bush Admin when 400 words and several f-bombs work all the same.
It’s almost like Glenn is trying to test the validity of his keyboard’s warranty.
BTD
@General Egali Tarian Stuck:
Snark right? Glenn is wrong on a lot of things about Kagan, but obviously that is not what he said.
Midnight Marauder
@John Cole:
Surely, you cannot be this dense on your own blog.
A healthy amount of people find Greenwald to be intellectually dishonest in his engagement with critics and others, in addition to being an ugly individual who resorts to misguided and insulting hyperbole when challenged. Also, he appears incapable of respecting that ideas and opinions divergent from his own are not, in fact, solely the result of Dear Leader cult worship.
Maybe you should take a break from the bird feeder and read some of your own threads?
jl
@John Cole:
Cole’s blog soldiers have divided into pro and anti Kagan camps, and pro and anti Kagan camp camps.
And anyone who has one little question about Kagan (for instance, heroic little me) gets ground into a paste between those two immense millstones.
I am a victim.
Feed me to Tunch. I am done for.
Joseph Nobles
@Da Bomb: “So you refer to Glenzilla’s own article refuting what Lessig said instead say another source not connected to either party.”
Well, Glenn does a pretty good job of refuting what Lessig said. Facts are facts, no matter who does the refuting.
ETA: If Glenn is so easily dispensed with, why do his attackers feel the need to lie about what he said? Why not do it with the truth? That’s all I’m saying.
General Egali Tarian Stuck
@John Cole:@John Cole: He is on our teevees and blogs, and the radio and about everyfucking where these days, leading the charge to defeat Kagan. In fact he started his campaign well before she was selected.. He is considered a legal liberal weathervane of progressive thought and the officer in charge of prog dissent on the Kagan nomination. He can’t be ignored, as much as I would dearly wish.
I can ignore Jane, she is just bugfuck crazy these days. But not glenzilla, for reasons stated.
Mike Kay
@t jasper parnell: ah, c’mon. we only what to hear breathlessly hysterics about reich marshal kagan. Not persuasive material from the well respected SCOTUS blog! Do, I have to remind you, this is the poutosphere!
Da Bomb
@t jasper parnell: Facts, schmacts..
We don’t need no stinkin’ facts.
General Egali Tarian Stuck
@BTD: It was darn close to what he said, I would have to listen to the clip again. And it was the primary reason Lessig was incredulous.
edit – go read his recent articles on this. He does not caveat the “blank slate” charge with only being on judicial decisions from not being a judge.
Mike Kay
@Joseph Nobles: my favorite is when glen takes the ball bearings out of his pocket and plays with them as he talks about the missing strawberries.
Da Bomb
@Joseph Nobles: Are you able to verify to the nail everything that Glenzilla said as truth.
So you have worked alongside Kagan and know her record?
Who has lied about what Glenzilla said?
Joseph Nobles
@Da Bomb: Lessig has lied about what Glenn said. Glenn documents this pretty well in the article I linked to. I’m by no means a Glennbot. But when he’s right, he’s right.
burnspbesq
@BTD:
So if (hypothetical example) in the wake of the en banc First Circuit decision in Textron, Congress were to insert a provision in the Treasury appropriations bill that says the IRS cannot use any appropriated finds to issue or seek enforcement of summonses for tax accrual workpapers, Kagan would be OK with that?
John Cole
@Midnight Marauder: I read the vast majority of the threads. I just don’t get the personal animus towards Glenn.
Yes, his pieces are long. Yes, he says some obnoxious things from time to time. No, I don’t always agree with him. Yes, he has strong positions and is willing to tell people to fuck off.
You do know what blog you are reading right now, don’t you?
I guess I’m just crazy, but when I survey the carnage of our political landscape, I have a hard time getting worked up about some rhetorical excesses of someone who is an absolutist on civil liberties. In my book, that should be everyone’s default position. And no one was more important for my sanity from 2004-2009 of the Bush years than Greenwald.
So disagree with him, scream he is wrong, etc. I think he is wrong lots and even say so when I do! But I simply do not get the personal hatred and surely there are far better targets for the venom.
taylormattd
@General Egali Tarian Stuck: Don’t bother listening to the clip. Glenn is full of shit again on that one. Here is the transcript of what he says right out of the gate:
robertdsc
Still cute, though. /shallow
BTD
@burnspbesq:
Good question. I think she would think it was constitutional.
I think it would be constitutional too.
General Egali Tarian Stuck
@Joseph Nobles: In the article you cited, the claim of lying he makes, even he GG admits was fairly trivial, but uses it like wingers argue. One little untruth impeaches everything else. Kind of like what you are doing. Of course, when the tables are turned, we are all Obot Cultists, trying to smear a great warrior of truth, or something.
Joseph Nobles
What “substantive political and legal question” has Kagan taken a position or expressed a clear opinion on? Anyone? Even the Volokh article seems stymied on this. Major points for technical analysis for Kagan, but very little on how she would come down on the issue personally.
General Egali Tarian Stuck
@taylormattd: Thank you!
taylormattd
@MikeJ: Good point. I still wish he’d just stick to writing about how healthy it is to be morbidly obese.
Joseph Nobles
@General Egali Tarian Stuck: If it was fairly trivial, why did Lessig bring it up? Why did he spend the onair time he did on that “trivial” issue rather than find something more substantial? Why did he lie about something like that if the truth is so evident?
Why make up crap about little things if there’s plenty of evidence to the contrary on the big things?
@JohnCole: This.
chopper
@John Cole:
what’s wrong with greenwald? are you kidding? i sell fainting couches. he’s putting my kids through college!
BTD
@Joseph Nobles:
Her 2001 HLR article takes a position, and in my view the correct and progressive one.
In her SG confirmation testimony she took a position on enemy combatants and preventive detention. Probably not one you agree with but one I completely agree with.
Here again I disagreed with Greenwald –
burnspbesq
@BTD:
That makes three of us, more’s the pity. Because one of the unfortunate side effects of Citizens United, I think, is that we will see business lobbying groups pushing harder and harder for Congress to be more and more active in overturning or blocking enforcement of regulations. I mean, if we’re right, what’s to prevent, for example, Big Energy from getting its pet Congresscritters to gut every piece of safety regulation related to offshore drilling?
wrb
@Joseph Nobles:
Hopefully few. Then she might be confirmable in this era right-wing media control and foam-flecked politicians, pundits and teahadists.
t jasper parnell
@Joseph Nobles: I think it’s pretty clear that Lessig misunderstood Greenwald; it’s less clear that Lessig lied about it. Has Lessig responded to Greenwald’s complaint?
eemom
I have totally lost track of who’s lying about someone else calling them a liar, but Lessig has a piece up at HuffPo which rather cogently explains how Greenwald has distorted Kagan’s article on executive power.
freelancer
I’m just glad the Silly Season is behind us.
General Egali Tarian Stuck
@Joseph Nobles: She hasn’t been a judge dude, there is not going to be a record on how she reaches a judicial decision. And it is a fair complaint to note this deficiency, when we have become so used to seeing clear examples of how she would judge.
While it is a fair complaint, that is all it is as we have confirmed 40 out of the 111 SC justices that were not judges when confirmed. There are other ways to gauge her legal philosophy and it is not disqualifying in the least to have no judicial record.
taylormattd
@John Cole: I would argue the personal animosity stems from the fact that he has been little different than Jane Hamsher over the last couple of years.
His default position is that everything Obama says and does is the ultimate betrayal of progressives, and he manages to work the word “cultist” into what seems like all of his posts.
Add that to the fact that the guy appears to have a crush on a racist wingnut like Ron Paul, and there’s a lot with which to be annoyed.
mcd410x
I realize this only affects women, but has she taken a stand on Roe? In her well documented history?
Also.
Midnight Marauder
@John Cole:
I was only kidding about reading threads, but I think what you miss about the vitriol and hatred towards Greenwald is just how quick he is to dismiss almost any and all challenges to his work as being from O-bot, Dear Leader kool-aid drinkers. He makes incredible generalizations about his critics, and more importantly, “Obama supporters” in general that reeks of presumptuous disdain. That’s what I think you keep overlooking. He says one thing, other people say “No, I don’t agree with that,” and he frequently responds with “Of course you agree with Dear Leader. He says ‘jump,’ you say ‘how high?'”
Again, the problem is that Greenwald doesn’t just leave it at disagreements. You must be disagreeing with him because you are an Obama cultist. There is no middle ground, it would appear. That shit is bound to make people upset, especially on the interwebs.
And surely, you know there is no better venue for venom than Balloon Juice. I’m sure Church Lady will give you a reminder on that point if you need one.
mcd410x
@taylormattd:
I think this is incorrect.
t jasper parnell
@mcd410x: I don’t think so; she did, however, counsel Clinton to sign off on the Dashel exception, for whatever that is worth.
Da Bomb
@General Egali Tarian Stuck: No matter how many times this is pointed out, it falls on deaf ears.
It doesn’t matter how she would have been as a judge, because she could be completely different as a Justice. We just don’t know.
I am gathering my information and watiing for the confirmation.
General Egali Tarian Stuck
@Joseph Nobles: You are making it a bigger thing than it was, and even if untrue, which I personally doubt, it did not go to his main point that GG is full of it by declaring there is no record at all. Stop with the right wing methods of argument.
David in NY
But, but the FDL says that she’s never done anything and it’s no good anyway and ….
Ed: And I was so sorry I went to that site. And I usually can’t stand Volokh (except for Owen Kerr sometimes), but this sounds sane.
BTD
@burnspbesq:
That’s an interesting question as well.
There is an inherent “Living Constitution” approach in Kagan’s 2001 law review article and is it possible that the constitutional question should be decided differently if Citizens United unbalances our democratic institutions?
Easier to overrule Citizens United I hope.
eemom
@John Cole:
I think it’s been made clear at least eleventy gazillion times what some of us have against Greenwald, but since you apparently don’t listen to us, you should check out Giordano’s piece that someone linked to on an earlier thread. He sums it up rather nicely, such that you totally understand where he’s coming from when he refers to Greenwald and Hamsher as “pond scum.”
BTD
@mcd410x:
The NYTimes said today in its editorial that Kagan has publically endorsed Roe. I have not seen the actual wording.
BTD
@eemom:
I did before and Walter Dellinger did days later. this was in mid-April.
Da Bomb
@taylormattd: And he also supported a well known white supremacist earlier in his career. He called the civil rights groups that were trying to sue Hale, opportunists and low(paraphrasing).
Even though Hale might have been involved in ordering the killing of some minorities.
And his love for Ron Paul disturbs me as well too.
John Cole
@eemom: I understand your opinion. My point is merely I simply do not understand why every thread devolves into a discussion of Glenn.
Da Bomb
@eemom: Here’s the linky:
http://narcosphere.narconews.com/thefield/3948/progressive-kagan
Da Bomb
@eemom: Here’s the linky:
http://narcosphere.narconews.com/thefield/3948/progressive-kagan
Mike Kay
@John Cole: I think you should devot some space to the Sestak-Spector race. Looks like fun.
Joseph Nobles
@General Egali Tarian Stuck: Lessig had a choice. His one example of how Glenn was full of it was patently false. If Glenn was so full of it, why pick the one example where he could so easily be shown to be misrepresenting Glenn?
No, Kagan hasn’t been a judge. She has, however, held these positions in her legal career:
1986-87: Clerk for Judge Abner Mikva, U.S. Court of Appeals, D.C. Circuit
1987-88: Clerk for Justice Thurgood Marshall, U.S. Supreme Court
1989-91: Associate in Private Practice, Williams & Connolly
1991-97: Assistant Professor and Professor, University of Chicago Law School (1991-94 as assistant professor)
1995-96: Associate White House Counsel
1997-99: Deputy Assistant to the President, Domestic Policy Council
1999-01: Visiting Professor, Harvard Law School
2001-03: Professor, Harvard Law School
2003-09: Dean of Harvard Law School
2009-10: Solicitor General of the United States
And from all of that, the one substantive position that BTD has pointed out is one on which Glenn disagrees with her sharply. So is it a surprise that Glenn castigates her for it?
David in NY
… we must cultivate our garden …
t jasper parnell
@Joseph Nobles: Surely, the complaint that Greenwald is making is that the absence of evidence is evidence of an absence of liberalism.
And, who knows, he may be right but the record as it is suggests that she is a Liberal. Maybe she will sit in the Well and come out as an orginialist whackadoodle or the obverse but that strikes me as unlikely.
Resident Firebagger
Wow, she wrote four articles? Wheeeeeeeee!
Seriously, the whole Supreme Court nomination process went off the rails with Bork and Thomas, so presidents of both parties pretty much select comfy insiders with seemingly no recorded opinions on anything. I get that. And of course, Obama is a fuckuva lot smarter than Bush. But where the Kagan-Miers comparisons work for me is that, from what I can tell, Kagan was chosen to “serve at the pleasure of the president.” She’s Obama’s choice because she’ll back his expansion of executive authority. Selected by a Democratic president, she’ll move the court further to the right. The end.
And yes, this is pretty much what my wee liddle brain filters from reading Glenzilla. Cole can take Obama’s word because he voted for him. I take Greenwald’s word because I actually believe what he says.
Janus Daniels
Two informed intelligent sane adults have an argument and:
“… essentially agree that the rhetoric and accusations escalated more quickly than either anticipated (or was really warranted), and that this is really just a good faith dispute over an issue (the Kagan nomination) that desperately needs to be aired and debated (and both said so on Twitter). Lessig has appended a similar note to the response he wrote at TheHuffington Post today, and we’re going to do a Bloggingheads session this week to examine these and other issues.”
http://www.salon.com/news/opinion/glenn_greenwald/2010/05/11/lessig/index.html
Thanks!
Could we learn from the Greenwald Lessig example?
Bill Murray
@John Cole: Because eemom, Mike Kay, General Stuck et al. have nothing substantive to add except their hatred of GG. Therefore, they have to say the same things over and over and over again. Plus, judging by some their posts yesterday, reading comprehension is not high on their list of core competencies
I also think it’s great that some major conservatives are behind the Kagan pick. Nothing heartens me more than Eugene Volokh and Miguel Estrada getting behind Kagan. The March of the Liberals continues ever
updownward. Woo Hoo!!John S.
Or maybe she is a truly liberal pragmatist who believes in building consensus (even in difficult situations) and winning incremental victories rather than risk failure. I suspect this is precisely why Obama selected her.
As Al Giordano rightly pointed out, it’s trying to score by steadfastly amassing completions and first downs. Glenzilla and company only believe in throwing deep on every down, because if the play isn’t HUGE, it doesn’t count.
trollhattan
@Joseph Nobles:
According to Sully, this is proof she’s the Todd Marinovitch of judges.
General Egali Tarian Stuck
@Joseph Nobles: So you are saying that since Lessig might have used an example that was false, then all the other reasons that weren’t, showing GG was full of it are no longer relevant. Is that what you are saying here?. I don’t really care whether Lessig cited the wrong thing or not, when many others existed. You are going to come here on this blog and try to sell shit like this? Really?
edit – and from what I can gather lessig might have been guilty of not describing his example fully or accurately, not that it didn’t exist. Even GG says this and that it is a minor thing, but goes on to do what you are doing, or that one thing was wrong, all the other right things don’t count. That is bullshit. We are not in a fucking court room here, nor is RM;s show.
Mike Kay
@Da Bomb:
populists hate corporations so much they gravitate to Paul’s anti-corporate screeds and become myopic to all his great faults (anti-choice, dismantling government, etc.).
Martin
I just want to know why Cole is always blowing BTD on this blog. Fucking Armandobot.
t jasper parnell
I just read some of the letters of recommendation sent in related to Kagan’s SG nomination here and she seems more liberal than not.
Mike Kay
@Bill Murray: Now here’s some kleenex, wipe your nose, you pansie-hippie.
General Egali Tarian Stuck
@Bill Murray: I am yer personal Varmint Cong.
Joseph Nobles
@General Egali Tarian Stuck: I am saying that when Lessig was showing an example of how Glenn misrepresented Kagan, he was actually misrepresenting Glenn. When Mike Kay then used Lessig’s appearance as an reason to bash Glenn, I showed him that it was actually not a reason to bash Glenn. I have said zero about other reasons to disagree with Glenn. Reasons to disagree with Glenn are not reason to lie about what Glenn says.
That is what I am saying.
Mike Kay
@Joseph Nobles: dude, give it a break, glen is not even that cute. the way you groupies act, you’d think he was ricky martin.
FlipYrWhig
I dislike Greenwald because far too many people decided to farm out to him their opinions and arguments on all civil liberties and executive power questions. So he became like the legal-analyst version of Paul Krugman on economics. And he _relishes_ that role, and he basically makes decrees, and then they pop up everywhere and all his acolytes just reinforce each other’s views because they all agree with him. It’s fucking pernicious. Krugman at least has some humility and some humor. Greenwald lacks both. (IMHO Atrios is very similar; his default attitude is exasperation that everyone else is a moron.)
Plus Greenwald has no notion that every disagreement isn’t nuclear. Imagine what it would be like if you were hanging out with him and you decided to get food, and you decided you wanted sushi but he wanted thai. You would have to put up with a hours-long tirade about how the only reason you like sushi is that you blindly follow the sushi-liking trend that has been in effect since 1985, and then even after you got the fucking thai food you would have to hear ten more updates on why sushi still was repulsive and no one should eat it, not even if they were starving.
Joseph Nobles
@Mike Kay: Calling me a Greenwald groupie is exactly the same tactic Greenwald uses when he dismisses his detractors as Obots. It really should be a guiding principle to not use debate tactics that undermine your own position.
Comrade Kevin
@John Cole: These Kagan threads keep morphing into ones about Glenn Greenwald because he has been leading opposition to her from well before the time Obama selected her. He has been on TV talking about it, writing in his blog about it, etc.
Well, that, and there are a few commenters who just can’t resist talking about him.
Mike Kay
@Joseph Nobles: I love when you guys take the bait. I get you guys to swing at the slider every time.
eemom
@Comrade Kevin:
Exactly. As my kids would say, duh.
Jody
Thanks for this, John. Gives me a better idea about who she is.
She seems acceptable for the job, now that someone has been able to translate her credentials into something I can understand. And frankly, nobody they nominate is going to be left wing enough for me, so I’d better learn to live with whoever.
And Another Thing...
@BTD: On the issue of detentions I think he distorted what Kagan said in her testimony. It will take abt 3 minutes to read it.
http://findarticles.com/p/news-articles/political-transcript-wire/mi_8167/is_20090211/sen-patrick-leahy-holds-hearing/ai_n50840849/pg_29/?tag=content;col1
Now here is GG’s bullshit characterization of that testimony:
Among the most disturbing aspects is her testimony during her Solicitor General confirmation hearing, where she agreed wholeheartedly with Lindsey Graham about the rightness of the core Bush/Cheney Terrorism template: namely, that the entire world is a “battlefield,” that “war” is the proper legal framework for analyzing all matters relating to Terrorism, and the Government can therefore indefinitely detain anyone captured on that “battlefield” (i.e., anywhere in the world without geographical limits) who is accused (but not proven) to be an “enemy combatant.”
http://www.salon.com/news/opin…..4/13/kagan
geg6
Personally, I am of two minds about Glenzilla.
Like you, Cole, he almost single-handedly kept me sane during the second W term. His was the first political blog I read obsessively. And his legal take was very attractive to me since I have never really lost my love for arguing from a legal standpoint from my undergrad days when I still thought grad school meant law school for me. But my hatred and fury at Bush blinded me to how Glenn is just much more of a doctrinaire libertarian than I could ever be.
I’m a liberal realist. Probably a bit to the left of Obama (well, make that definitely). Glenn is most definitely NOT a liberal and I don’t even understand any more what a progressive is, but he claims to be a champion of progressivism so I guess I’ll believe him and assume that progressive means a left libertarian. And that’s fine, but that doesn’t make him, necessarily, my ally. As with all libertarians of any stripe of my acquaintance, he is closed-minded, supercilious, disingenuous in arguments, and lacking any sense of humor or humility. And Obama has brought out every one of those ugly traits and turned them up to eleven. To make things even worse, he seems to feel the need to come over here, bringing all those traits with him, to insult the commenters here when he’s criticized here.
Between his constant hysteria over Obama, his unholy alliance with Jane Hamsher (who I will never respect again), his fawning over that racist piece of shit Ron Paul, and his twisting of facts in almost every argument he makes, I have a hard time not feeling a level of hostility toward him. I still read him now and again, but I haven’t gotten past the first paragraph of a single post he’s written about Kagan (or Obama, for that matter). I don’t need to because I pretty much know what he’s going to say and chances are I will vehemently disagree. I just scan it for the telltale “Obama cultist” accusation and I’m out.
Bruce (formerly Steve S.)
@John Cole:
You have a small but persistent core of commenters who are simply not very good people. You have a slightly larger group of commenters who probably are not bad people but choose to go along with the narrative rather than check original sources and engage the actual arguments of others. Then there are those who find fulfillment in simply tossing out a few words of schtick (“firebagger”, etc.).
Fortunately you also have the likes of your good pal BTD, who is committing the unpardonable sin of disagreeing with Greenwald on the merits rather than for hysterical emotional reasons.
If their respective Twitter pages are to be believed Greenwald and Lessig are already making nice, so accusations that Lessig is cashing in on a firebagging slush fund should start rolling in any minute.
Paula
I dislike GG’s writing because it’s quite painful to read someone who has bad arguments for causes and ideas I ostensibly support. He does not represent “my” side well, so I would very much rather someone else more deserving get that primo space on Salon, get asked to radio and tv news shows, etc. It’s not a mystery, really.
Mark S.
Giordano on Jane and Glenn:
This is exactly why I’ve found them so annoying lately. If they really cared so deeply about these issues, there are a billion different things they could be doing besides going on cable and spreading the meme “Gee, even libtards hate Obama.”
Paula
@Bruce (formerly Steve S.):
I’m sorry, but who are you to say that a buncha largely anonymous blog commenters are “good” or “bad” people? Did the Moral Majority for the Left get established somewhere that I don’t know about?
And many of GG’s defenders accused his critics of being turned off by mere “rhetoric” rather than looking @ the substance of his work. Look what the fuck you’re complaining about. Some namecalling, on teh intertoobz? Teh horror!!
John S.
And for that sin, Glenzilla will reward the likes of BTD and Al Giordano with 5,000 word screeds which can be summed up in 4 words:
You’re an Obama cultist.
Mark S.
@And Another Thing…:
I would definitely say Greenwald distorted her testimony:
GRAHAM: Now, the point we have to make with the world, would you agree, Dean Kagan, is that the determination that led to the fact that you’re an enemy combatant has to be transparent?
KAGAN: It does, indeed.
GRAHAM: It has to have substantial due process.
KAGAN: It does, indeed.
GRAHAM: And it should have an independent judiciary involved in making that decision beyond the executive branch. Do you agree with that?
KAGAN: Absolutely.
Paula
@Midnight Marauder:
Maybe the better question would be if Cole reads GG’s Salon comments section. The guy insults his own readers who, in totally good faith without the least hint of pro-Obamism, try to dispute his points. One of his favorites is passive-aggressively accusing people of not having reading comprehension skills (in addition to calling them Obots).
I don’t care how far up the ivory tower you are. Having people read you on the internet in that kind of capacity is a privilege. You don’t treat your readers like dirt.
burnspbesq
@Paula:
Amen. If Marty Lederman hadn’t gone off to OLC we’d have no need for Greenwald. Public-spirited bastard!
JMY
@Mark S.:
That’s what I’ve been trying to say all along. He has a right to his opinion and has substantial concerns, but he distorted her statements and provided no context to those statements. Other than that, I wouldn’t really have a problem with his opinion. You don’t think she should be the nominee? Fine, but try to be fair about it.
burnspbesq
It’s a reach, but I would analogize Greenwald’s career to Lou Reed’s. Brilliant initially (say 2005-08). The last two years have been all “Metal Machine Music,” all the time.
Does he have a “New York” or a “Magic and Loss” in him? Only time will tell.
Mike Kay
@geg6: Righteous rant, baby!
And Another Thing...
@John Cole: If people were quoting Mark Steyn, or Krauthammer, or Mark Levin on this blog as an “authority” in support of some position in the manner that GG is quoted, I think you’d see the same kind of hostility. When I decide to click through one of GG’s links and read the original source, I frequently find he has mischaracterized the information. When he’s challenged on it, he finds some nit to pick ad nauseum which functions like a magician’s misdirection, and frequently insults those who disagree with him.
If he were someone I knew professionally, and my personal credibility were going to be on the line, I would NEVER use his research or his arguments without checking everything first. YMMV
de stijl
Here’s my take on Mr. Greenwald:
tl;dr
This applies to every post. If brevity is the soul of with, GG is the most witless person on the planet.
Bruce (formerly Steve S.)
@Paula:
Why, a largely anonymous blog commenter, of course. Who the hell are you?
sparky
@And Another Thing…: could you please provide an example? i see endless carping about GG here, but AFAIK it always seems to boil down to someone not liking his conclusion or his characterization–like that little dustup a while ago here about the inferences one might draw from a fact.
i have yet to see someone here point out something GG wrote in his blog that is factually wrong, much less a pattern of misrepresentation. just because you don’t like what he says doesn’t mean that he’s dishonest.
@burnspbesq: interesting reminder of a strange lacuna. i don’t understand how the Lederman of Balkinization could still be at OLC given what has gone on there, most notably the Bush DOJ exoneration. maybe he prefers being part of the Establishment.
And Another Thing...
@sparky: So go to post #95, follow the link to testimony that Kagan gave at her confirmation hearing to Solicitor General. She’s questioned by Sen Graham. then read the paragraph from GG’s blog where he is characterizing that testimony. I provided a link so you can see whether I distorted his quote.
By the way, Jonathon Turley quoted the same testimony in a manner that distorted the nature of the testimony. Interestingly, he didn’t provide a link.
To his credit GG usually does.
wrb
@sparky:
The mischaracterization linked @95 is damning
Paula
@Bruce (formerly Steve S.):
A person who tries to avoid moral character judgments of people I don’t actually know. Except for you — you’re clearly a troll.
General Egali Tarian Stuck
@sparky: Either you don’t read so good, or comprehend what you read, or are willfully ignorant. We have given example after example of it, and on this thread.
OriGuy
I’m not a lawyer, but it seems to me that being a Justice is very different from being a judge. There’s no jury, no witnesses giving testimony, the facts of the case are not in dispute. By the time a case gets to the Supreme Court, the parties have fine-tuned their arguments as much as they can. The Justices read the briefs, send out their clerks for research, ask a few questions in oral arguments (or not, in the case of Thomas), and try to sway the other nine to see their point of view.
Think Progress has an article on her work as Solicitor General. She argued six cases before the Court this term, and oversaw 23,000 cases in the last year. One thing that I didn’t know is that the SG advises the Supremes on which cases to take.
tomvox1
@John Cole:
I think you should read more recent Greenwald, John. The personal hatred and venom appears to be emanating from him towards President Obama and also towards those who dare say they admire him, just as it did (and justifiably so) towards W. Bush and his minions. It is like he is on some personal mission to prove that he is the only one who can see clearly that Barack Obama is W. Bush in blackface. I understand being a gadfly and a muckraker and holding even one’s supposedly natural allies to a higher standard; it’s a valuable role in society. But I think GG is the kind of “Big L” Libertarian who genuinely hates our government and believes that it is wicked. Therefore, those who sit atop the government, namely Presidents of any given party, are Those Who Must Be Unmasked as the venal, corporatist, closet despots that they really are.
Therefore, Barack Obama is no better than either of the Bushes who are no better than Clinton who is no better than Reagan and Nixon, JFK, etc.
And I just call Bullshit on that whole approach. I don’t hate GG, not in the least. But I do think he is a sore-assed SOB who would pour the hate on Lincoln (suspended Habeas Corpus, remember, and was slow to embrace abolition) and FDR (interred the Japanese and didn’t act on the Holocaust, remember, and talk about excessive Executive power!) just as he does with Obama. Mixed in with his very healthy concern for the dangers of unchecked governmental power there is present in nearly every post a contempt for the US and its utterly imperfect political system. And by extension, he regularly shows contempt for all us dumb suckers who believe in that system and think that every once in a while a president comes along who is probably the best we can hope for in our lifetime and is now steering the country on a better course than it previously was on.
I would really like to know who Greenwald’s ideal president would be. I bet he couldn’t answer the damn question because he does not actually believe in the worth of the institution or the possibility that the man who would choose that job could possibly be a decent human being, at least not once exposed to the corrupting influence of the power inherent in it. Hell, maybe he’s even right. But it’d be nice if he’d just STFU once in a while and admit that some administrations are genuinely better on the whole than others.
chopper
totally.@FlipYrWhig:
this is all kinds of win.
and lol at the pumas, again. yeah, let’s go off on somebody that president hillary would totally have nominated. that’ll show the world that you’re not a one-trick obama-hate pony.
Bruce (formerly Steve S.)
@Paula:
Hilarious. I guess you have a personal relationship, then, with the individual who is “passive-aggressive” and resides in an “ivory tower”. What’s Glenn like in person?
General Egali Tarian Stuck
@Paula: Just a little advice. This particular piece of shit troll should only be fed large quantities of pie. It is of no more use than that.
Alex S.
I didn’t know that Kagan is a legal scholar, I thought she was a lesbian.
cleek
the problem with idealists like Greenwald is that they are idealists. they shout and scream and pout and cry that they don’t get every fucking thing on their Pony List without the slightest care in the world to the fact that US politics, with its two party system, means that tearing support from the person who best represents you is exactly equivalent to supporting those who represent you least.
Obama will never do the things the idealists want, because he’s not an idealist. but the idealists are going to keep chipping away at his support, in vain. literally – it’s vanity. and it’s total obliviousness to the way American politics works. they’re willing to sacrifice progress for purity. they live in a fantasy world where politicians wake up one day and say “oh yeah, those idealists were right! i’m going to change everything about myself in order to please so whiny-ass dipshit who knows nothing about doing the job i have to do! no, i’ve never been a lefty idealist, but today i start!” they are so drunk on their own ideals that they can’t see that those ideas are not in the realm of the possible.
well, fuck them.
wrb
Lessig putting a load of hurt on Greenwald:
Ok, So Now I’m a Liar
Paula
@General Egali Tarian Stuck:
Ok … must … resist …
Man, that is trolly, though. Do they get paid by Salon or what?
cat48
@cleek: Agreed. Obama is a liberal realist.
General Egali Tarian Stuck
@wrb: I just read that, but supposedly they have kissed and made up, or something. Doesn’t sound like it. A must read for those noodling about why many of us reject the intellectual dishonesty.
cleek
@wrb:
this. a thousand times, this.
GG is a wordy, hyperbolic rage-machine. glad to see him called out on it.
and JC’s comparison to GG and himself (JC, #39) is superficially accurate. but JC isn’t being paraded around as a “Constitutional Scholar” [sic]. JC’s words aren’t being given the air of authority that GG’s are given. JC isn’t on TV and radio pretending like he is a deeply serious authority with important things to say.
GG’s not on TV and radio because he’s entertaining (the way JC’s rants are), because, from what i’ve seen and read of him, GG is utterly humorless. he’s on TV and radio because people think he’s Serious.
well, he may be serious, but he’s sloppy and hyperbolic and completely oblivious to the actual workings of real world politics. he’s not helping anyone but himself.
Mark S.
@Alex S.:
You’re just confused because she was the dean at Harvard Lesbian School.
wrb
Re 123
Must read if just for the discussion of Glenn’s “grammar” excuse.
Polite, generous, and deadly.
Mark S.
I think I’ve read enough about Kagan’s essay on Presidential powers to conclude that she’s not John Yoo in a dress.
burnspbesq
Man, I loves me some Scott Horton.
http://www.harpers.org/archive/2010/05/hbc-90007020
Glenn who?
And Another Thing...
@wrb: Thanks for the link, that is a well written piece.
Paula
@burnspbesq:
So the takeaway is what … that GG’s rants have completely backfired and turned her into someone that liberals need to defend?? hahahahaha …
someguy
I don’t get the objections to Greenwald. He is a remarkably temperate person, considering roughly 134% of conservatives should be shot for being idiots, and ~80% of liberals should be kidney punched for the same reasons. That a guy as smart and honest as Greenwald isn’t walking around shooting people is a testament to his forebearance and patient temperament.
Anya
@John Cole: GG has a lot of valid points and he fights the good fight on civil liberties. I like that about him. He annoys me though when he climbs in his purity high horse. He refuses to give an inch on any issue and he can be petty and vindictive. I really hate the way he dealt with DougJ. All that venom should be reserved for something worthwhile. I
Mnemosyne
@wrb:
So, in other words, GG is doing what GG always does: starts with a premise (Kagan supports increased executive power if it is granted by Congress and can be taken away by Congress) and then slowly pushes it further and further from the truth until it becomes “Kagan supports increasing executive power just like Bush!” when she’s actually approaching it from the opposite direction (ie there is no inherent detention power in the executive, but Congress can delegate those powers if it chooses).
I think tomvox1 is right at #117: Greenwald and his acolytes are opposed to the government having any power, so they don’t care that Kagan’s opinion of how the executive branch is granted that power differs radically from Bush/Cheney’s. It’s where the libertarian-left and the liberal-left abruptly part ways with many screams of “traitor!” from the libertarians.
And Another Thing...
@burnspbesq: Man, I totally agree, Horton is a treasure. It’s been such a long time that I don’t remember the details but early in the Gitmo/detentions mess, it was military JAG’s who were objecting to the treatment on detainees. Some of them flew to NYC to meet with a lawyer for advice resulting in the beginning of visibility of the crap that was going on. Some years later, I learned that it was Horton who had been involved very early on. As nearly as I can tell, he was a key player in the unraveling of the lies. He didn’t grandstand or posture at the time or subsequently. A true professional and a hero.
burnspbesq
@Paula:
The principal takeaway is that some people can write and some can’t.
FWIW, I think Horton’s take on Kagan’s view of executive authority is a bit off (as you can readily see from my colloquy with BTD in an earlier thread). My take is that she finds the Cheney view of the unitary executive as inherently superior to, and unaccountable to, Congress and the judiciary to be meritless. And in the larger perspective, that article, and the mid-90s series of articles on the theory of the speech clause of the First Amendment, render Greenwald’s “blank slate” argument completely frivolous.
My other point in linking to Horton is that he is an example of how it is possible to disagree without being disagreeable.
liberal
@John S.:
Nonsense. Wood has a proven record of consensus building on a federal court. If that was the criterion, he’d have picked Wood.
wrb
@liberal: @liberal:
No he wouldn’t have. Woods is too old.
Corner Stone
@Bill Murray:
They got nothing except GG has the temerity to say something different. And they hate him for it.
And they will lie, and lie, and lie about what is actually said. Forever.
General Egali Tarian Stuck
@Corner Stone:
Yer so cute when all huffy and such.
Corner Stone
@General Egali Tarian Stuck: You and eemom are mental soulmates.
Both stupid as the day is long, and both more than willing to lie their balls off to try and schmear someone they do not agree with.
You can’t face an argument you disagree with, you just start slandering, lying and generally doing what you do.
General Egali Tarian Stuck
@Corner Stone:
You’re still my number 2 Huckleberry. Bottle Worm got you again? Come over here tough guy, stuck’ll make it better.
And Another Thing...
@Corner Stone: .
“…schmear…”
I believe that’s usually combined with a bagel & lox.
Corner Stone
@And Another Thing…: Personally, I like the honey and almond schmear.
Corner Stone
@General Egali Tarian Stuck: Only if there’s a long walk and short pier involved.
You have all the intellectual integrity of a hyena on the plains. You and eemom rip and snort unintelligible nonsense in the pursuit of lying your ass off to some end.
General Egali Tarian Stuck
@Corner Stone:
Hillllllllllary !!
Your insults are sweet as tears from a clown.
de stijl
@Corner Stone:
If you want a picture of the future, imagine a blog commenter disagreeing with you-forever.
And Another Thing...
@And Another Thing…:
somehow the word “schmear” disappeared….sigh…
Corner Stone
@General Egali Tarian Stuck: And this is instructive. You screaming out some nonsense as if it’s a legit response.
You can’t even bother to look in a mirror. And I can’t say I blame you. I’m sure it’s ugly.
Well, for you at least.
Mark S.
Will you two get a room?
General Egali Tarian Stuck
@Corner Stone: I always respond to clowns this way, especially when I’m in a good mood. Would you like a cookie?
General Egali Tarian Stuck
@Mark S.:
Sure, you wanna join us? A menage de twa. how bout it CS?
Mark S.
@General Egali Tarian Stuck:
Oh, I’d just get in the way.
Uriel
@FlipYrWhig: Putting aside the present debate and it’s sure to be endless permutations, that second paragraph? Genius.
El Cid
Isn’t it the job of some writers to be “idealists”? Is it the job of all writers to be ‘realists’, to offer counsel to the existing patterns of authority?
Joseph Nobles
Greenwald and Lessig will be on Democracy Now in the morning together. They appear to have hashed things out among them.
I’m modifying my statement about Lessig lying about Greenwald. Based on his “So Now I’m A Liar” article, I can see the context of what he was trying to say (particularly his excellent point about the different characters of the unitary executive advanced by Kagan in 2001 and the Bush/Cheney version). He didn’t make that point on air, and you can clearly see he’s reading from Greenwald’s article and skipping the reference to the SG confirmation. I’m putting this down to his first time on air and not realizing how his words would be seen.
That point however is worth making, and it’s one that Greenwald is sliding around as well. I’m much more satisfied with the Kagan version (that Congress gives the President most of his or her modern powers and can thus take them away) rather than the Bush/Cheney version (that the Constitution gives the President most of his or her modern powers and no one can take them away other than by amendment).
I also completely buy Lessig’s characterizaton of Kagan’s needs as the dean of the Harvard Law School. She wouldn’t have been able to pull that department together the way she did if she’d run around throwing down big liberal positions every chance she got. Hers is a mind and a character that belongs on the Supreme Court.
I look forward to reading the transcript of Democracy Now tomorrow. And if ever tempted to respond to Mike Kay again, I will remember to think about Proverbs 26:4-5.
cleek
@El Cid:
of course. but GG’s not being a writer, he’s being a pundit, or worse, an expert opinion.
but, either way… pragmatists should not be expected to welcome the preening, fantastical, coalition-rending, bomb-throwing of the idealists.
Bobby Thomson
@Da Bomb:
Greenwald’s response is based on quotes. If the quotes are right, Lessig deliberately misrepresented what Greenwald said and when. If, in fact, Greenwald is full of shit, that should be easy to prove by going to the original source material rather than relying on an ad hominem attack.
Bobby Thomson
@General Egali Tarian Stuck:
So, in other words, you can’t defend what Lessig did.
And the reason for bringing it up in the first place is that someone chortled over Lessig schooling Greenwald, then went ad hominem when a link was posted to Greenwald’s response pointing out that it was Lessig who had misrepresented Greenwald’s position.
General Egali Tarian Stuck
@Bobby Thomson:
Lessig said it was “absurd” for GG to opine that Kagan was “a complete blank slate” What Lessig said was true, and whether or not Lessig might have misquoted GG in one instance, does not change the truth that GG was full of shit with this false claim about Kagan.
So yes, I can and will defend what Lessig said above, which is the relevant point. If he botched explaining it, that is a different issue. I don’t care about the specific pissing match between Lessig and GG. I care about GG spreading lies about Elena Kagan.
brantl
@John Cole: No shit, and amen.
General Egali Tarian Stuck
@Bobby Thomson: You really ought to read Lesigg’s follow up article at Huffpo. He explains himself and utterly destroys GG.
brantl
@taylormattd: I am interested to learn how you became a telepath, and can read GG’s mind. Care to tell me how you do that?
brantl
@John S.: This is the substantive kind of criticism of Glenn (and Jane) that I can agree to. Well said, without dubious vitriol.
General Egali Tarian Stuck
@brantl: Now if we can just get your idol GG to offer substantive criticism of Kagan/Obama/and their supporters, without the vitriol, everybody can hug and sing kumbaya.
Persia
@John Cole: But I simply do not get the personal hatred and surely there are far better targets for the venom.
I often wonder (with Sully too) how often his sexual orientation plays into it. People who ‘have no problem’ with gays oddly and suspiciously lose their shit over Greenwald, and use terms like ‘shrill’ that are usually reserved for the ladies.
(I’m not trying to call anyone out here, I’m talking in general terms.)
Bobby Thomson
@General Egali Tarian Stuck:
That’s one of the things he said. It’s defensible.
Well, one of the things he said was true, or at a minimum, defensible, but another was clearly wrong, and indefensibly so.
It’s not just that he misquoted him. It’s that he lied about the claim Greenwald and when he made it, and it was impossible to make the mistake innocently when you look at the context.
I agree that they are two completely different things. By the same token, that Lessig is on much stronger ground in taking Greenwald to task on the “blank slate” comment does not change his intellectual dishonesty in deliberately misrepresenting Greenwald’s position with respect to the unitary executive.
I also agree that Greenwald is wrong that she’s a blank slate. I don’t like the pick because of what I know about her. Her First Amendment jurisprudence frightens me, and she’s been at the SG position for less time than Sarah Palin was Governor of Alaska. Obviously she’s light years smarter than Palin, but I don’t know that she’s any more adept at log rolling the current conservative justices (nor do I know how hard it would be for hypothetical liberal justices of the future to log roll her).
Joseph Nobles
Link to rush transcript of Greenwald-Lessig interview on Democracy Now this A.M.:
http://www.democracynow.org/2010/5/12/glenn_greenwald_v_lawrence_lessig_a
The transcript doesn’t appear to be complete (ending at the first G-L segment), but the video is also at the link.
General Egali Tarian Stuck
@Bobby Thomson: You dumbass, how the fuck do you know he lied. Maybe he just misquoted, or got it wrong unintentionally. Why would he lie when their were so many other examples why GG is lying. And yes he was lying. And didn’t you read my goddamn first comment on this, it wasn’t to defend Lessig, like maybe others were doing. You miss the entire fucking point, just like the lying GG. Christ you Greenwald worshippers are a tedious bunch of nuts. I am wondering if you are even from this planet.
General Egali Tarian Stuck
@Bobby Thomson:
And BTW, it wasn’t Lessig who accused GG of lying, you twits. It was GG accusing Lessig of lying. Lessig just said it was absurd to say she was a blank slate. Fucking wankers. jeebus.
It’s probly about time for me to forego blogs if this mindless drek keeps up.
sparky
@And Another Thing…: thanks for doing that work yesterday. so, i looked at what you asked me to look at, and i am sorry to report that GG is correct. i think the problem is that many people are not looking at the way that Graham phrased this little monologue. here it is in full via the NYT
Senator GRAHAM. OK. Let me read from Mr. Holder here. Would
you consider him your boss?
Ms. KAGAN. In a manner of speaking, Senator. I guess he can fire
me, so that makes him my boss.
Senator GRAHAM. That would make him your boss. But he seems
to be—I think he would be a good boss.
Ms. KAGAN. I think so, too.
Senator GRAHAM. And I think you would be very qualified for
your job. I asked him, ‘‘Do you think we are at war?’’ And he says,
‘‘I don’t think there’s any question but that we’re at war. I think
to be honest, I think our Nation didn’t realize that we’re at war
when, in fact, we were. When I look back at the 1990’s and Tanzania,
the embassy bombings, the bombings of the Cole, I think we
as a Nation should have realized that at that point we were at war.
We should not have waited until September 11, 2001, to make that
determination.’’
Do you agree with that?
Ms. KAGAN. It is easy to agree with my boss in that circumstance.
Senator GRAHAM. OK. I asked him where the battlefield might
be. If we are at war, I asked him, ‘‘Where would the battlefield be?’’
And he gave what I thought was a—I said, ‘‘If you are trying to
explain to a civics class, a 9th grade civics class about the battlefield
in this war, what would it be?’’ And he said, ‘‘The battlefield—
there are physical battlefields, certainly, in Afghanistan, but there
are battlefields, potentially, you know, in our Nation. There are
cyber battlefields that we’re going to have to—where we’re going to
have to engage. But there’s also—and this sounds a little trite but
I think it’s real—there’s a battlefield, if you want to call it that,
with regard to the hearts and minds of the people in the Islamic
world. We have to do things in a way, conduct ourselves in a way,
that we win that battle as well, so that people there who might
otherwise be well intentioned do not end up on the wrong side and
against us.’’
Do you agree with that? Well, I certainly do, too. And I told him
I felt what he was speaking of was the moral high ground. There
is a physical high ground in traditional war, but in this war there
is the moral high ground, and we have to maintain that moral high
ground. I think at times we have lost it. But we also have to remember
we are at war.
Now, I asked him this question: ‘‘Now, when you talk about the
physical battlefield, if our intelligence agencies should capture
someone in the Philippines that is suspected of financing al Qaeda
worldwide, would you consider that person part of the battlefield,
even though we’re in the Philippines, if they were involved in al
Qaeda activity?’’ Holder said, the Attorney General said, ‘‘Yes, I
would.’’
Do you agree with that?
Ms. KAGAN. I do.
Senator GRAHAM. So that gets us back to Senator Feinstein’s
question. Under law of armed conflict, as I understand it, and
under the Geneva Convention, Article 5 says that if there is a dispute
about status, what you are entitled to is an independent, neutral
decisionmaker. And in most wars, that can be a battlefield determination
by a single officer. But because this is a war without
end, that will not end with a ceremony in the USS Missouri, there
will be no defined end, I am all for giving more due process.
But the point she is making, I think is an important point. You
cannot detain someone indefinitely under criminal law. They have
to have a trial. But under military law, if you are part of the
enemy force, there is no requirement to let them go and go back
to the war and kill your own troops. Do you agree that makes
sense?
Ms. KAGAN. I think it makes sense, and I think you are correct
that that is the law.
Senator GRAHAM. So America needs to get ready for this proposition
that some people are going to be detained as enemy combatants,
not criminals, and there will be a process to determine whether
or not they should be let go based on the view that we are at
war, and it would be foolish to release somebody from captivity
that is a committed warrior to our Nation’s destruction.
Now, the point we have to make with the world, would you
agree, Dean Kagan, is that the determination that led to the fact
that you are an enemy combatant has to be transparent?
Ms. KAGAN. It does indeed.
Senator GRAHAM. It has to have substantial due process.
Ms. KAGAN. It does indeed.
Senator GRAHAM. And it should have an independent judiciary
involved in making that decision beyond the executive branch. Do
you agree with that?
Ms. KAGAN. Absolutely.
Senator GRAHAM. So we can go tell the world that this person is
being held off the battlefield not because one person says so, but
because there is a process that led to that determination where you
had an independent judiciary involved. Do you think that is important
for the Nation to make sure we have that kind of process?
Ms. KAGAN. I do, Senator.
if you read the italicized text, it is apparent that Kagan does agree with Graham and, as a matter of course with the Bush notion that the US can take anyone, anywhere in the world and put them anywhere the US wants to, for as long as the US wishes, subject only to some sort of “process”. if that isn’t subscribing to the Bush worldview i don’t know what is. so, no, GG is not exaggerating at all; he’s just a careful reader and lawyer, at least in this case.
sparky
@General Egali Tarian Stuck: i’m sorry but you are mistaken. read my response just above to see why.
nothing against you or anyone here personally, but the apparent inability or unwillingness to actually read anything in context here is really quite telling. this is just like the health care business–endless repetition of fragments that don’t mean what they are alleged to mean.
sparky
i should say it’s unfortunate that GG (1) doesn’t always make his case as clearly as he ought to and (2) is sometimes intemperate in his responses to people.
(1) well, that’s a style issue, mostly. as for (2) he had to endure years of crap from the GOP and now he gets crap here. i can’t really blame the guy for being angry.
sparky
@Bobby Thomson: thoughtful rejoinder. i think this is really an interpretive question and so one’s response is based on one’s experience. anyone familiar with Kagan’s roles would, i think, say she’s a blank slate–it’s really rather amazing–and potentially telling–that she doesn’t have a record on most–though not all–issues. but, that said, i can see the general public saying “of course she’s got a record”, which she does, if you compare her to the public. but that’s not a relevant comparison, in my opinion. incidentally, i have started reading her adlaw piece from 2001, and it seems that it is basically a rather tepid defense of what she actually did when she worked for Clinton. i cannot imagine a safer thing to write about. whatever else you want to say about her, this is not a woman who takes chances, and yes, i would expect that sensibility on the bench.