By Matthew Rothschild on May 11, 2010

I’m troubled by Obama’s nomination of Elena Kagan to the Supreme Court.

I’m troubled not because she has no prior experience as a judge. Obama’s right that we need more than cloistered judges on the top bench.

But I wish she had more experience outside of the University of Chicago Law School and Harvard Law School, outside of the Clinton White House and the Obama White House.

These aren’t the widest of worldly experiences.

And her time in the White House is especially troubling.

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I’d much prefer having a non-judge who was a former member of Congress, for instance, someone who had an intense personal appreciation for the other branch of government.

Unfortunately, Kagan’s government experience is with the Executive Branch and with upholding its powers. That’s what she did as Solicitor General, remember. She went to bat for the Presidency.

And this President, like George W., has embraced a vast expansion of Executive Powers. So Kagan or her deputies have repeatedly gone into court to invoke the undemocratic doctrine of state secrets. And they’ve gone into court to assert the right to hold any person, captured by the military or the CIA or by some foreign power anywhere in the world, for an indefinite period of time at Bagram Air Base in Afghanistan—without recourse to any due process rights whatsoever.

In Maqaleh v. Gates, she told a federal court: “When it comes to military facilities, unlike Guantanamo, that are truly abroad—particularly those halfway across the globe in an active war zone—courts in the United States exceed their role by second-guessing the political branches about the reach of habeas jurisdiction.”

It’s no surprise that Kagan disdains due process for detainees. At her confirmation hearings as Solicitor General, Kagan testified that she had no problem with that.

Well, I do. And Justice John Paul Stevens sure did. And the Constitution does. And the Geneva Conventions do.

It’s more than a little too bad that she doesn’t. And that Obama doesn’t.

Stevens, by the way, brought Kennedy along and assigned him the role of writing the decision in the Boumediene case that limited the Executive Branch’s ability to deny due process to detainees.

Wrote Kennedy: “The test for determining the scope of the habeas corpus provision must not be subject to manipulation by those whose power it is designed to restrain.”

So, on this crucial issue of executive power, Kagan is to the right of Kennedy!

I also doubt that Kagan will be better than Stevens in influencing Kennedy, much less the justices on his right. Like Kennedy, Stevens was appointed by a Republican, and Stevens had 12 years on the Court before Kennedy, his junior, came along.

Still, Obama hailed her “skill as a consensus-builder.” But what the court needs now is not a “consensus-builder,” since on many issues there is no basis for consensus. There is a vast ideological gulf. Instead, it needs someone who can advocate as aggressively for a progressive jurisprudence as Roberts, Alito, Scalia, and Thomas advocate for a reactionary one.

The Supreme Court is not Harvard Law School. And Kagan will not be the dean. She’ll be the junior member. To the extent that she is determined to be a consensus builder, the conservatives are more likely to drag her their way than she is likely to drag them in a progressive direction.

More’s the pity.

Matthew Rothschild is the editor of The Progressive magazine.

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By Wendell Berry

Manifesto: The Mad Farmer Liberation Front

Love the quick profit, the annual raise,
vacation with pay. Want more 
of everything ready made. Be afraid 
to know your neighbors and to die.
And you will have a window in your head.
Not even your future will be a mystery 
any more. Your mind will be punched in a card 
and shut away in a little drawer.
When they want you to buy something 
they will call you. When they want you
to die for profit they will let you know. 
So, friends, every day do something
that won’t compute. Love the Lord. 
Love the world. Work for nothing. 
Take all that you have and be poor.
Love someone who does not deserve it. 
Denounce the government and embrace 
the flag. Hope to live in that free 
republic for which it stands. 
Give your approval to all you cannot
understand. Praise ignorance, for what man 
has not encountered he has not destroyed.
Ask the questions that have no answers. 
Invest in the millennium. Plant sequoias.
Say that your main crop is the forest
that you did not plant,
that you will not live to harvest.


Say that the leaves are harvested 
when they have rotted into the mold.
Call that profit. Prophesy such returns.
Put your faith in the two inches of humus 
that will build under the trees
every thousand years.
Listen to carrion—put your ear
close, and hear the faint chattering
of the songs that are to come. 
Expect the end of the world. Laugh. 
Laughter is immeasurable. Be joyful
though you have considered all the facts. 
So long as women do not go cheap 
for power, please women more than men.
Ask yourself: Will this satisfy 
a woman satisfied to bear a child?
Will this disturb the sleep 
of a woman near to giving birth? 
Go with your love to the fields.
Lie easy in the shade. Rest your head 
in her lap. Swear allegiance 
to what is nighest your thoughts.
As soon as the generals and the politicos 
can predict the motions of your mind, 
lose it. Leave it as a sign 
to mark the false trail, the way 
you didn’t go. Be like the fox 
who makes more tracks than necessary, 
some in the wrong direction.
Practice resurrection.

Wendell Berry is a poet, farmer, and environmentalist in Kentucky. This poem, first published in 1973, is reprinted by permission of the author and appears in his “New Collected Poems” (Counterpoint).

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