The Senate should reject Elena Kagan’s Supreme Court nomination because she seeks to expand executive branch authority at the expense of the public’s historic civil rights. She is part of an Obama Department of Justice (DOJ) leadership team that has failed to redress unconstitutional lawbreaking by overzealous prosecutors and greedy judges.
The Justice Integrity Project (JIP), a bipartisan group I lead, announced on June 28 our opposition to Kagan, based especially on our core area of research in these areas of official misconduct. I’m thrilled with the opportunity to share some of our findings here with American Daughter Magazine readers. The implications of the current debate extend far beyond the politics of whether she’ll be confirmed. We need to review the threat of this nomination to our core heritage, and work to conserve what’s best against threats that are almost unprecedented in their aggregate scope.
Our legal system deals with constitutional issues that are too often decided by a Supreme Court on a partisan, result-oriented basis, not “the law.” The essence is that we need frank discussion of that process, plus reform.
Although this nominee is by all accounts a pleasant and brilliant person, her track record on key civil rights issues does not deserve public trust or confirmation. This is especially so given her direct involvement as DOJ solicitor general in several notorious cases advocating for more executive branch power without effective oversight.
On June 28, for example, the Court met to decide whether to concur with her request in November to deny a hearing for former Alabama Gov. Don Siegelman and former HealthSouth CEO Richard Scrushy. Fortunately, she and the Justice Department lost. The Court vacated convictions in the nation’s most notorious political prosecution in memory. Also, it remanded the case to a federal appeals court for reconsideration in light of the Court’s decision the previous week that the “honest services” law used by DOJ in official corruption investigations can be unconstitutionally vague.
Getting to the right results in these kinds of cases requires real work, real values and real lawyering. That contrasts with the political theater during Senate confirmation hearings this week proceeding largely along party-lines. The hearings fire up the base of the parties largely on hot-button cultural issues, but duck the ones central to the disintegration of our core constitutional protections, such as a litigant’s right to an honest judge and an otherwise fair trial.
In one of Kagan’s few scholarly works, she described the confirmation process as “vapid and hollow.” But she reversed her view last year as she avoided tough questions during her confirmation to be solicitor general, DOJ’s third-ranking post. She was confirmed with 61 votes.
To foster reform, my group has launched a special website featuring critics of Kagan, the confirmation process and the largely unaccountable executive branch. With scant oversight, U.S. presidents increasingly lead the way on economic policies, war-making and mandatory health insurance of dubious constitutionality, as well as warrantless electronic surveillance, torture, and prosecutorial immunity from liability.
Looking ahead, let’s try to imagine how the courts will address problems created by BP’s Gulf oil volcano. Will a government and news media that minimizes it as a mere “spill” be inclined to protect the public in other ways?
Constitution & Cover-Up
Kagan’s undue deference to executive authority, particularly after nomination by her friend Barack Obama, violates the warning of Federalist No. 76 explaining the need for a Senate process that avoids cronyism.
Exhibit A is how Kagan rubberstamped DOJ misconduct in the Siegelman case: In 1999, Scrushy contributed at Siegelman’s request to the non-profit Alabama Education Foundation. Siegelman then reappointed Scrushy to a state board. At sentencing in 2007, authorities sent the two away in chains for seven-year terms. But an unprecedented bipartisan coalition of 91 former state attorneys general last year told the Supreme Court that such donations are routine and not a crime. Kagan disagreed on behalf of DOJ.
My in-depth investigation has confirmed that the two defendants were systematically framed, with a cover-up extending to the current administration. The results below have long been published and are congruent with the published findings of other researchers. But oversight authorities have never undertaken serious investigations calling relevant witnesses. I think you’ll see why:
Authorities headquartered their all-out attack on Siegelman, Alabama’s leading Democrat, at Maxwell-Gunter Air Force Base in Montgomery. The prosecution had the effect of helping a European-led consortium in its ongoing effort to win $35 billion in Air Force contracts for a next generation of tanker planes, which would be assembled in a factory in Mobile. Meanwhile, fraud in Scrushy’s company unrelated to his criminal conviction enabled lawyers suing HealthSouth and its insurers to feast on a $2.8 billion state court civil fraud judgment against him and HealthSouth during his imprisonment.
As described more fully by investigative reports on these and other matters collected on the JIP site, the two-party system cannot be relied upon to provide the facts in a typical hearing about such vast sums. The money benefits key figures from both parties. Pro-prosecution rulings by Mark Fuller, chief federal judge in Alabama’s middle district helped ensure guilty verdicts. Fuller has been enriched on the side by $300 million in federal contracts awarded since 2006 to Air Force contractor Doss Aviation, Inc., a closely held company that the judge controls as its largest shareholder. Doss trains Air Force pilots and refuels Air Force planes globally.
JIP’s new website makes publicly available for the first time all of the nearly 180-pages of documentation filed in federal court in 2003 by Missouri attorney Paul B. Weeks, III, who distributed 50 copies of the evidence to courts, DOJ and Congress while seeking Fuller’s impeachment for another Doss-related scandal. The documentation shows how the judge tried to obtain $330,000 in unmerited payments from Alabama’s pension system for a staffer. But authorities promptly removed the Weeks filing from court files, with the docket simply noting that a filing was made and that it was being kept in a “separate file,” with an undisclosed location. Wherever the file is, it’s not available on the electronic PACER system the public uses to research federal court documents.
The Weeks filing is long but fascinating. Among other things, Weeks listed on the second page those government officials to whom he was sending the evidence in 2003. But Weeks now says no government investigator has ever contacted him for follow-up even though there’s no statute of limitations on crimes requiring impeachment.
Meanwhile, DOJ has retained the Bush team prosecuting the Siegelman/Scrushy case led by Middle District U.S. Attorney Leura Canary. DOJ fought for years Freedom of Information Act litigation to disclose whether Canary actually recused herself from the case in 2002, as she claimed. Her husband William was campaign manager that year for Siegelman’s Republican opponent for governor.
There’s much more to this, including a courageous DOJ paralegal named Tamarah Grimes who tried to object through channels to waste of government funds in the all-out effort to nail Siegelman, but was herself investigated and fired. A Republican, Grimes was fired last year shortly after writing a 10-page letter to the Democratic Attorney Gen. Eric Holder outlining her concerns.
Here’s the bottom line since that might be difficult to parse through: Both parties protect DOJ on this kind of institutional issue. Grimes wrote me this week that no one has ever contacted her from DOJ’s much-touted internal inquiry launched in 2008 into political prosecutions nationwide such as the Siegelman case. “Based on my personal experiences with DOJ’s investigations into DOJ,” she said, “they are not worth the paper they are written on and are an egregious waste of taxpayer resources.”
Reviewing the top of that DOJ ladder during our moment in a democracy when the public can review a nominee’s credentials: Kagan promised during 2009 confirmation hearings she would quit if she ever had to take a position she didn’t believe in. Her filing in the Siegelman case suggests that she’s reneging, or else using her legal skills to win friends by helping DOJ keep a lid on its internal scandals. She looks like a technocrat, at best, if not part of the cover-up.
DOJ and the elite private bar are reluctant to criticize judges, even when the stakes are high for the lay public. Thus, judges can often set their own rules regarding recusal. This is particularly so at the Supreme Court, where scrutiny is minimal on the most sensitive issues despite vast analysis of formal opinions by the media and law professors.
Even with so much coverage, few in the general public know, for example, that three of the five Supreme Court justices who stopped the 2000 presidential vote recount to enable the Bush presidency were arguably conflicted. That’s because they had close family members who were helping the Bush transition or who would obtain posts in the new administration. Prudent news organizations tend to avoid this kind of coverage, given the extensive federal regulation of the media and their parent companies. Perhaps coincidentally, the Federal Communications Commission from 2001 until now has always included at least one member of the Bush Florida recount team.
Does Confirmation End Oversight?
Thus, most oversight ends with a confirmation. Justice Antonin Scalia, one of those three Republicans who in essence picked Bush as president, famously told a CBS correspondent asking about his decision, “Get over it!” Similarly, Scalia said, “Get a life!” to a critic of his vote to keep secret the vice presidential records of his hunting partner, Dick Cheney, about White House meetings with energy company CEOs.
Public suspicions of biased, result-oriented decisions occur with Democrats also, of course, with scant protections even in the lower courts. My group JIP took the lead this year in showing that Democratic U.S. District Judge Stephen Robinson of New York bullied Republican Bernard Kerik into an unwarranted guilty plea last fall on false statement and tax charges.
The former New York police commissioner’s federal ordeal began in 2007 when his mentor, Rudy Giuliani, was a leading GOP presidential contender. Newsmax and Geraldo Rivera of Fox News reported early on about the unfairness. Kerik, a stalwart Republican, wrote Siegelman a personal note last year saying he’d followed his case and the same things were happening to him. My reporting this year broke the story of how the judge led the way in secretly suppressing evidence that would have helped Kerik, and otherwise pressured the defendant into a guilty plea to federal charges stemming from Kerik’s use of a home renovations contractor interested also in city work.
More legal revelations about unfairness in the Kerik case are expected soon in a Vanity Fair article. In the meantime, Kerik is serving a four-year term that exceeds both his plea bargain and federal guidelines. Robinson just resigned from the bench to join a law firm where the average partner makes $2.1 million a year. The judge’s big paydays to come have infuriated Kerik’s defenders in the law enforcement community. Several have written me reminders of how the judge imposed a harsh term on Kerik to teach him a lesson while complaining that he as a judge had to live on a modest federal salary.
In sum, it’s easy to find examples of elemental struggles in our federal trial courts, with judges directly involved — at least in the minds of litigants.
In this environment, Kagan’s Harvard, Obama and Clinton credentials (interestingly augmented by her role as an advisor to Goldman Sachs) will probably lead to confirmation. The Democrats still have a majority, and essentially party-line voting can be expected for a friend of the president, especially one who has so many glowing endorsements from elite figures from both parties at the highest ranks of academia, law, government and business.
But many other people are now scared, or angry at Washington and at crony capitalists alike. People want — and deserve — a reliable advocate on the Court for our basic freedoms.
© Andrew Kreig, all rights reserved
Andrew Kreig is an attorney, radio host, author, research scholar and free-lance journalist based in Washington DC. He is currently executive director of the Justice Integrity Project. Earlier, he led the Wireless Communications Association International as CEO from 1996 to 2008.