In a New York Times op-ed, John Yoo -- author of the infamous torture memos -- attacked Elena Kagan for agreeing with the Supreme Court majority rather than Yoo himself on the limits of presidential power. Yoo, a law professor and Philadelphia Inquirer columnist, previously urged a filibuster of anyone Obama nominated.
By attacking Kagan for not having the same extreme views as he does on executive power, Yoo does at least provide a rejoinder to those who forward the myth that Kagan will act as a rubber stamp on war on terror policies.
In his Times op-ed Yoo attacks Kagan for stating views of presidential power that are "in line with the views of a majority of the Supreme Court justices and many liberal scholars who feel the executive branch's powers are quite limited." Yoo goes on to attack Kagan for not adopting his own and Justice Scalia's views that congressional attempts to limit the president's control over the executive branch are unconstitutional:
In her law review article, Ms. Kagan also lauded Supreme Court holdings that Congress can prohibit presidents from firing subordinate officers, which effectively prevents the president from giving orders. This would place the executive agencies under the political thumb of the legislative branch. "I acknowledge that Congress generally may grant discretion to agency officials alone," Ms. Kagan wrote, and "the president must respect the limits of this delegation."
Under this approach, Congress could free the Justice Department, the Defense Department and any other agency created by Congress from presidential control. To be fair, Ms. Kagan thinks this would be a bad idea (she praised President Clinton's centralization of authority in the White House because it fostered "accountability" and "effectiveness"). But she argued that the Constitution gives the president no power to prevent Congress from doing so.
This is simply wrong. Article II of the Constitution vests in the president alone "the executive power" of the United States. As Justice Antonin Scalia wrote in his dissent from the court's 1988 decision upholding the constitutionality of the Office of the Independent Counsel, "this does not mean some of the executive power, but all of the executive power." (His argument was proved prescient in 1999 when Congress let the law authorizing the independent counsel lapse.)
It must be noted that the legal analysis of the president's inherent powers Yoo used in the torture memos was so shoddy the Bush administration was forced to withdraw them after they became public. Additionally, the Justice Department reportedly specifically repudiated Yoo's claim that the Fourth Amendment had "no application to domestic military operations."
Furthermore, at least one of the Bush administration's claims of executive authority went too far even for Scalia. In Hamdi v. Rumsfeld, a case in which a majority of justices rejected the Bush administration's power to hold U.S. citizens as enemy combatants on U.S. soil without access to civilian courts, Scalia went even further than the majority. In a dissenting opinion joined by Justice John Paul Stevens, Scalia argued that Congress had not authorized the suspension of habeas corpus and therefore the executive branch did not have the power to hold citizens like Hamdi. (Congress has since authorized detentions in the Military Commissions Act.)
Fox's John Stossel has repeatedly called for the repeal of part of the 1964 Civil Rights Act, saying that "private businesses ought to get to discriminate" and that free-market forces will resolve racial discrimination.
From the May 26 edition of Premiere Radio Networks' The Glenn Beck Program:
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It's been a few weeks since anyone's written a why-are-we-still-fighting-over-the-1960s article, so the New York Times is going large with the topic in tomorrow's paper. The piece ties together two seemingly unrelated -- no, scratch that, they really are unrelated -- events, which are Connectucut Democratic Senate candidate Richard Blumenthal and his apparent past misstatements on Vietnam and Kentucky Republican Senate candidate Rand Paul and his remarks on the Civil Rights Act of 1964. (It's the excuse they've been waiting for! A Democrat and a Republican -- balance!). Anyway, here's the nut:
Why then, to quote the ubiquitous Bono, is our political debate so stuck in a moment it cannot get out of? In part, it is probably because so many of the Americans most engaged in politics — as well as those who run campaigns and comment endlessly on them — are old enough to remember Altamont. It is your classic self-fulfilling prophecy: the more the '60s generation dominates the political discourse, the less that discourse engages younger voters, and the longer the boomers hold sway over our politics.
On a deeper level, though, this all probably has as much to do with our basic human tendency toward moral clarity. As much as conservatives may view the decade as the crucible of moral relativism and the beginning of a breakdown in established social order, there remains something powerfully attractive about the binary, simplistic nature of it all, the idea that one could easily distinguish whether he was for war or against, in favor of equality or opposed.
Personally, I do think the 1960s remain an incredibly important touchstone in the politics of the 2010s, although I don't think either Blumenthal or Paul are necessarily great examples of that -- especially Paul, whose politically unpopular ideas are rooted in a libertarian philosophy that's not in the mainstream of either that decade or this one. However, I'm one of the few people around who's been to both a liberal Netroots Nation (formerly Yearly Kos) convention and the conservative National Tea Party Convention, and both groups had a lot of folks who were in their 50s -- i.e., old enough to have memories of the 1960s -- if not older.
Researching my book on the right-wing movement that's arisen since Obama, I found a lot of conservative grassroots, Tea Party style activists who were stronly driven by what they'd seen in the 1960s or early 1970s (which were really an extension of the '60s). This is just anecdotal, but I met a disproportionate number of Vietnam vets in their movement. The one that I focus on in the greatest detail in "The Backlash" -- Russ Murphy of the Delaware 9-12 Patriots -- is an ex-Marine who was in Vietnam even before the 1965 escalation of the war; he says that hippies in Swarthmore, Pa., actually spit on him when he returned from the war, and anger over his treatment still burns inside him today.
Why the 1960s? I think that Times gets it right in the age group. Baby Boomers are larger than the generation that comes after them, and they are in the power-wielding years of their 60s and 50s. One thing I found is people in this generation carrying vivid memories of the 1960s just have more time for politics -- on the grassroots level, some are retirees and some are unwillingly "retired" because of the economy and some are part-time workers or homemakers. It's just easier for them to go to Tea Parties and what not than it is for some 30-something raising two or three kids, who doesn't know Woodstock from Woodstein.
But what resonates about that decade? I think it's two things. First, the factors that led to a long (and in hindsight unusual) polticial consensus were beginning to melt away in the 1960s. From 1933 and FDR's New Deal through 1968, America was run by Rooseveltian Democrats and one (again, in hindsight) liberal Republican in Dwight Eisenhower, and economically we had a large and properous, heavily blue-collar middle class. The 1960s was when the closing of factories began in earnest (at first in Northern cities, then everywhere) and when U.S. oil production peaked. The number of people attending college rose sharply from 1965 to 1974 but I think in a nation that raises so many financial barriers for children to attend college, this positive development helped sew some of the seeds of our division.
There were increasing reasons that now economically battered, traditional middle-class voters (think Sarah Palin and her core voters) and a now larger professional class (think Barack Obama and his core supporters) distrusted and disliked each other. The future Palinites resented self-appointed elites and their snooty attitudes, and those future Obamaites resented both the fact and the way that the other side ruled (mostly) from 1968 through 2008. It's very easy to trace these battles that we fight today in a straight line to the 1960s.
And the other reason -- alluded to in the Times article -- is that just as the national consensus was cleaving apart, you had issues that presented very stark contrasts with clear moral choices. Vietnam is probably the ultimate example. Whatever you think about the muddy waters of future American wars like Iraq, Vietnam was a conflict that clearly was about nothing more than the United States throwing its weight around halfway across the world, so it easily divided the nation between those who felt that we should be doing that kind of thing and those who thought it was wrong. Civil rights was another issue with little ambiguity, and to some degree that was true of the culture wars over sex and drugs and rock and roll.
I remember vidly how the 1960s loomed over my own time as a college student in the late 1970s. People were politically exhausted. Vietnam was over and what you might call the "low-hanging fruit" of civil rights -- things like segregation that were unambiguously wrong -- had been picked. The only political issues that created even a ripple for a couple of years were protests over apartheid in South Africa and the renewal of draft registration, because they were relatively safe and low-key echoes of the 1960s, almost like a Civil War type re-enactment of those great battles of our forerunners.
And it's not much different today. And I'm starting to think that the sad reality that those of us who remember the actual 1960s won't be around forever may not change that for a while. The truth is it won't change until there's job opportunities and educational opportunties for all Americans, especially the middle class, and there's no more Vietnam-style wars over oil -- until we eliminate the things that on a daily basis remind us of exactly what it was that divided us nearly a half-century ago. And until then Americans will be doomed just like the characters in F. Scott Fitzgerald's The Great Gatsby, "bourne back ceaselessly back into the past."
From the May 24 edition of Premiere Radio Networks' The Glenn Beck Program:
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Despite reporting on the controversy surrounding Rand Paul's criticism of portions of the 1964 Civil Rights Act, Fox News' Special Report did not address the fact that Fox News' John Stossel called for the repeal of the portion of the act that prohibits discrimination in places of public accommodation.
From the May 20 edition of Premiere Radio Networks' The Glenn Beck Program:
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Conservative media have relied on distortions to paint Elena Kagan as an opponent of the constitutional right to keep and bear arms. Now, Constitutional Accountability Center's Doug Kendall has pointed out a particularly disingenuous attack on Kagan in this area. Last week, Townhall.com columnist Ken Klukowski and former Ohio Secretary of State Ken Blackwell claimed on BigGovernment.com that Elena Kagan showed that she opposes gun rights by deciding not to file a brief in a case challenging Chicago's gun control laws. In fact, as Kendall has demonstrated, Kagan followed normal Solicitor General practice in the case, and Blackwell's and Klukowski's purported evidence to the contrary is based on a falsehood.
Blackwell and Klukowski claimed to have evidence that Kagan opposes "Americans' Second Amendment right to own a gun." They cited Kagan's decision as Solicitor General not to file a brief in McDonald v. City of Chicago, a case dealing with the question of whether the Second Amendment individual right to keep and bear arms enunciated in District of Columbia v. Heller applies to the states through the "incorporation" doctrine, under which certain protections of the Bill of Rights apply to the states.
The argument is nonsensical on its face: Kagan didn't file a brief in the case. Therefore, she didn't take a position on whether the Second Amendment applied to the state. Therefore, one can't determine her views on the Second Amendment on the basis of what she did in that case. Not to mention that one can't infer personal legal opinions from Kagan's actions as Solicitor General in any event.
But Kendall has uncovered an even more fundamental dishonesty in their work. Blackwell and Klukowski insist that it is normal practice for the Solicitor General's office to file briefs in incorporation doctrine cases and cite the fact that, in 1969, the Solicitor General filed a brief in Benton v. Maryland -- a case dealing, in part, with whether the Double Jeopardy Clause of the Fifth Amendment applies to the states. Blackwell and Klukowski wrote:
If someone asserts that the solicitor general shouldn't file a brief because it's a state issue as to whether the Second Amendment is "incorporated" to the states through the Fourteenth Amendment (which is the issue in McDonald) the record speaks to the contrary. The last time the Supreme Court "incorporated" a right from the Bill of Rights to the states, in the 1969 case Benton v. Maryland, the solicitor general filed a brief, and then (just like Heller in 2008) was given time in oral argument time to express the government's views in front of the Court.
In fact, as Kendall notes, the Solicitor General's brief in Benton v. Maryland did not even mention the incorporation issue. Rather, the SG's brief dealt solely with another issue in the case: the issue of whether the federal courts should continue to apply the "concurrent sentence doctrine" to avoid hearing certain appeals in criminal cases. The SG's brief in Benton does not even mention the Double Jeopardy Clause or the incorporation doctrine. In addition, it was filed at the invitation of the Supreme Court. According to the majority opinion by Justice Thurgood Marshall: "The Solicitor General was invited to file a brief expressing the views of the United States and to participate in oral argument."
From the May 20 edition of Premiere Radio Networks' The Glenn Beck Program:
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Referring to remarks Cass Sunstein made in a 2001 interview, Rush Limbaugh stated that Sunstein "want[s] to control the Internet" and that "[Elena] Kagan agrees" with Sunstein. In fact, Sunstein has called the policy he described in the 2001 interview a "bad idea," and Limbaugh offered no evidence to support his claim that Kagan agrees with such a policy.
Right-wing bloggers and Rush Limbaugh are pushing an absurd distortion of an AP report on a meeting on human rights to claim that the U.S. "apologized" to China over the Arizona immigration law. In fact, nothing in the reports indicates that the U.S. "apologized" to China.
Here's what the AP wrote:
[Assistant Secretary of State Michael] Posner said in addition to talks on freedom of religion and expression, labor rights and rule of law, officials also discussed Chinese complaints about problems with U.S. human rights, which have included crime, poverty, homelessness and racial discrimination.
He said U.S. officials did not whitewash the American record and in fact raised on its own a new immigration law in Arizona that requires police to ask about a person's immigration status if there is suspicion the person is in the country illegally.
From the May 17 edition of Premiere Radio Network's The Rush Limbaugh Show:
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Since President Obama's election, many conservative media figures have baselessly warned their audiences that Obama and the Democratic Congress will try to ban/confiscate guns or have suggested that a government effort to ban guns is likely:
We can now add Fox News contributor Sarah Palin to that list. In a speech at the NRA's annual convention on Friday in North Carolina, the former half-term Governor of Alaska became the latest conservative media figure to advance the baseless fearmongering.
The Associated Press reports:
Palin, a potential 2012 presidential candidate, told National Rifle Association members during their annual meeting that the only thing stopping Obama and his Democratic allies from trying to ban guns is political backlash.
"Don't doubt for a minute that, if they thought they could get away with it, they would ban guns and ban ammunition and gut the Second Amendment," said Palin, a lifelong NRA member who once had a baby shower at a local gun range in Alaska. "It's the job of all of us at the NRA and its allies to stop them in their tracks."
Palin, the GOP's 2008 vice presidential nominee, also praised tea party activism as a "beautiful movement," drawing a rousing applause from thousands of NRA members who gathered in an arena used by the NBA's Charlotte Bobcats.
On the heels of the right-wing distortion of Elena Kagan's academic record to falsely claim Kagan is anti-free speech (she isn't), right-wing blog KaganWatch is highlighting the fact that Kagan worked on a brief in support of rap group 2 Live Crew's defense against an obscenity case.
In a May 13 post titled: "Kagan has 'judicial' experience...she supported rappers," (Oh, snap! A double hit) KaganWatch highlighted a McClatchy article reporting that Kagan filed the brief for the Recording Industry Association of America to help the rap group defeat the obscenity charges against its album, "As Nasty As They Wanna Be," and its single, "Me So Horny,"
KaganWatch's attempt to make something out of Kagan's brief is laughable. Kagan was a junior law firm associate in private practice when she worked on that brief on behalf of a client. And the work a lawyer does on behalf of a client is not evidence of the lawyer's judicial philosophy, as activists on the left and the right noted during the confirmation proceedings for Chief Justice John Roberts.
But what is really interesting is that the right-wing media can't seem to get its attack on Kagan straight: is she anti-free speech as Rush Limbaugh and Glenn Beck have falsely suggested, or is she too protective of free speech? Either way, the attack is nonsense.
Rush Limbaugh and Glenn Beck have falsely claimed that Elena Kagan wants to censor right-wing speech. In fact, in the article they cited, Kagan specifically stated that the government "may not restrict" speech "because it disagrees with ... the ideas espoused by the speaker."