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Tell Senate Judiciary Committee to Find Out If Kagan Will Expand or Curtail Executive Abuses

By davidswanson - Posted on 25 May 2010


Whether the nominee’s views as a justice would reflect the positions she has taken as a solicitor general is admittedly unclear. Indeed, the roles of senior Justice Department officials and Supreme Court justices hold little in common.

However, the few available indications of the nominee’s views indicate a predilection to favor the Executive Branch, perhaps recalling her own history of public service within it. Many trends on the Supreme Court have attracted attention, such as demographic trends reflected in the emergence of a Catholic majority, educational trends rendering the Court a product entirely of the most elite law schools and legal pedigrees, political trends favoring corporations, and jurisprudential trends undermining constitutional rights. Given the dramatic expansion of executive power over the past decade, the rising predominance of former executive branch officials on the Court should raise at least equal concerns.

Unfortunately, a variety of issues constrain Congress’ ability to check the President, whose institutional authority has ballooned over the past decade—often with Congress’ active support, apparent in recent amendments to statutes including the Military Commissions Act and the Foreign Intelligence Surveillance Act. As the “war on terror” continues to fan the flames of public fear and encourage deference to authority, the need for judicial independence stands at a historical zenith.

Regardless of who stands before your committee, we encourage you to vigorously examine any nominee to the Supreme Court, with a particular eye towards establishing his or her willingness to check and balance the Executive Branch when necessary to protect constitutional rights.

Areas of constitutional doctrine that have particularly suffered in the past decade include the First Amendment rights to freedom of association and speech, as well as religious free exercise; the Fourth Amendment rights to freedom from unreasonable searches and seizures; the Fifth Amendment right to due process; the Sixth Amendment’s assurance of trial by an impartial judge before a jury of one’s peers; and the Fourteenth Amendment’s commitment to equal protection under the law. Any nominee’s views of each of these doctrines should be carefully considered before granting a lifetime seat on the nation’s highest court.

You, as a senator of the United States, are among a small number of guardians of judicial independence—and the separation of powers on which our republic has proudly stood for more than two centuries. We urge you to consider that trust, in this time of constitutional tumult, as a primary principle when deciding whether to confirm any nomination to the Supreme Court.

Respectfully submitted,



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