Kagan to Be Obama’s Pick for the Supreme Court?

by Kevin Jon Heller

That is what Mike Allen is reporting at Politico.  If he’s right, our next Supreme Court Justice will likely be the woman who recently argued this (h/t: my friend Steve Vladeck):

[W]ith regard to the material support statute, there are substantial (pending) issues with regard to its scope, given that the Ninth Circuit invalidated the “service,” “training,” and “expert advice or assistance” provisions on vagueness grounds.  That ruling is the subject of the Humanitarian Law Project case currently before the Supreme Court that I referenced earlier, one particular snippet of which bears mention here:

At one point, Justice Kennedy asked Solicitor General Kagan if filing an amicus brief on behalf of a designated foreign terrorist organization would constitute “service” under 2339B, and thereby subject the brief’s author to criminal prosecution [see pg. 47 of the transcript]. General Kagan’s answer, to perhaps everyone’s surprise, was “yes.” Specifically, as she put it, “to the extent that a lawyer drafts an amicus brief for the [designated groups], . . . then that indeed that would be prohibited.”

Can we finally stop pretending that there is anything even remotely progressive about Obama, at least insofar as national security is concerned?


7 Responses

  1. Some of us stopped believing that quite a while ago.

  2. Kevin, the prospect of Kagan on the Supreme Court is absolutely chilling, as Glenn Greenwald has been arguing over at Salon.com. For quite some time now, to see Obama as progressive on national security matters has required a kind of willful blindness to the facts.

    On the question of criminal prosecution of lawyers for representing blacklisted groups, Shayana Kadidal, senior managing attorney of the Guantánamo Global Justice Initiative at the Center for Constitutional Rights in New York City had a commentary worth reading on the issue over at Jurist the other day.

    He mentions the Supreme Court argument you cite, noting that the “hypothetical continued past the notion of actually writing the brief, and into whether a lawyer could explain how to submit such a brief:
    Justice Kennedy: “Can you [say] … here’s how to file an amicus brief?”
    Kagan: “….you can’t. Because when you tell people [that], you’ve given them an extremely valuable skill that they can use for all kinds of purposes.”
    (That’s at pages 51:18 to 52:6 of the transcript.)

  3. What Anonsters said…

    I do have a dream though…

    But the again, pigs might just end up flying…

  4. Thanks for the tip, Charles.  Chilling indeed.

  5. Conflating Kagan’s personal beliefs with arguments she has run as Solicitor-General is a little disingenuous, is it not? If all lawyers were tainted, personally, with arguments they’ve run for their clients, no one would likely be able to serve on the Supreme Court. I don’t know much about Kagan, or the context of the snippet, but the general premise of your criticism seems to be deeply flawed.

  6. Actually, David, it’s your description of my post that is deeply flawed.  I did not blame Kagan for the comment; I blamed Obama, who made the decision to embrace that particular interpretation of the material-support statute.  I chose my words carefully.

  7. Really, there’s no implicit criticism of Kagan in this post? Perhaps I’m missing something…

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