Saturday, April 17, 2010
Cockburn's piece is additionally worth reading for his evaluation of the frontrunning candidate to replace him, Elaine Kagan. Why is she the frontrunner and probable selection? The answer is obvious, because, as related by Cockburn (and others in the last week), she is an unabased proponent of the unitary executive and the powers that have been ascribed to it in order to prosecute the war on terror. And, beyond that, there is the fact that she has enthusiastically put her legal and intellectual credibility at the service of the Democratic establishment over the years.
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 Education for 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.
Kagan is, if one may be so impolite to say it, a hack, willing to take on any task assigned by the party leadership. Furthermore, she is much beloved by Republicans who are delighted by the prospect that, after putting several ideologues on the Court in recent decades, the Democrats may respond by replacing one of the Court's great civil libertarians with a centrist who defers to the power of the federal government when it is asserted against individuals, but skeptical when it is directed towards corporations.