President Obama has announced yet another recess appointment; the courtesy and propriety that he would not give to Dawn Johnsen:

President Barack Obama, frustrated by Republican obstruction of key administration staffing appointments, will use his power to appoint his pick to run Medicare and Medicaid while the U.S. Congress is in recess, the White House said on Tuesday.

Obama will make the appointment on Wednesday of Dr. Donald Berwick, a healthcare expert he nominated in April to run the vast federal medical programs for poor and elderly Americans, according to White House Communications Director Dan Pfeiffer.

Obama has found the inner spine to recess appoint NLRB member Craig Becker along with 14 other people to a variety of positions from the DOJ to Treasury Department, has stated he will do so for militarized spook James Clapper (who neither side seems to like), and now Donald Berwick.

Obama seems to consider Berwick critical:

Berwick’s appointment as administrator of the Centers for Medicare and Medicaid Services (CMS) place him at the heart of Obama’s historic healthcare reform, and the role was too vital to leave unfilled, Pfeiffer said.

“CMS has been without a permanent administrator since 2006, and even many Republicans have called on the Administration to move to quickly to name a permanent head,” he said.

Dan Pfeiffer and the White House are full of dung. If “many Republicans” were clamoring for his nominee, even a couple in the Senate, he would not need to recess appoint. What is truly stunning though is that Obama considers this position critical, but not the head of the Office of Legal Counsel, the body that is supposed to be the legal conscience of an administration. Equally galling is the fact the White House trots out the excuse that “CMS has been without a permanent administrator since 2006”. Four years is too long for CMS, but six years is no problem for the critical Office of Legal Counsel? Really?

As I have repeatedly explained and demonstrated with facts and evidence, Barack Obama had 60 votes for confirmation of Dawn Johnsen to head OLC for the entire second half of last year and sat on her nomination, refusing to even call a vote. The fact that Obama flat out refused to even consider a recess nomination for Dawn Johnsen to an office dying for real leadership, and that he will use the recess appointment power anywhere and everywhere else, ought to be proof to any doubters that the sole reason Dawn Johnsen is not leading the OLC is because Barack Obama did not want her there.

For a President intent on granting retroactive FISA immunity to criminally complicit telecoms, asserting endless claims of “state secrecy” to cover up crimes of the Bush/Cheney Administration, suppressing torture photos, tapes and evidence, ordering the indefinite detentions without trial or due process and ordering the extra-judicial assassination of remote targets (including American citizens), well I guess a person of Dawn Johnsen’s morals and ethics indeed might not be convenient. Even given that, why did the White House engage in such crass duplicity with the country and hang Dawn Johnsen out to dry for so long? Why won’t anybody ask that question of them and demand a legitimate answer?

Remember the plaintive cries of Democrats and progressives about the wrongful politicization of the Department of Justice by the Bush/Cheney Administration? Remember the stunning chart Sheldon Whitehouse whipped out at a Senate judiciary hearing on Alberto Gonzales’ tenure as AG showing how politicized the hallowed independent prosecutorial discretion of the DOJ had become under Bush, Cheney and Gonzales? The one that Pat Leahy called “the most astounding thing I have seen in 32 years”?

That was in late April of 2007, little more than three years ago. Despite the most fervent hope of a Democratic and progressive base that they were voting to change the wholesale invasion of the prosecutorial discretion by the White House political shop (along with so, so many other things), it appears little has changed. In fact, the invasion of province appears to be being writ larger and more profound. From Jerry Markon in the Washington Post:

Now, the decision on where to hold the high-profile trials of Mohammed and four others accused of being Sept. 11 conspirators has been put on hold and probably will not be made until after November’s midterm elections, according to law enforcement, administration and congressional sources. In an unusual twist, the matter has been taken out of the hands of the Justice Department officials who usually make prosecutorial decisions and rests entirely with the White House, the sources said.

“It’s a White House call,” said one law enforcement official, who spoke on condition of anonymity to discuss internal deliberations. “We’re all in the dark.”

The delays are tied to the administration’s broader difficulties in closing the U.S. military prison at Guantanamo Bay, Cuba — where Mohammed and the other detainees are held — and are unlikely to affect the outcome of a trial that officials vow will be held at some point. But people on all sides of the debate over whether Mohammed should be tried in federal court or before a military commission expressed frustration that nearly nine years after Sept. 11, justice for the attacks seems so elusive.

“It’s important that these trials actually take place, and soon,” said Jameel Jaffer, director of the national security project at the American Civil Liberties Union, which has long pushed for the trials to be held in federal court. “It’s not just that people held for long periods of time in government custody deserve to contest the evidence against them. It’s also that these trials are important to the country.”

For all the hope and change, nothing has changed. Toying with the root charging and prosecutorial functions and discretion of the Department of Justice as a way to respond to the prevailing political winds is a craven path for the Obama Administration to take. And hanging Attorney General Eric Holder and his Department out to dry in those winds is despicable political and executive cowardice.

So, on this fine Fourth of July, as we celebrate America’s independence and reflect on our founding principles, it would be wise to remember, and refresh the recollection of the Obama Administration, that this is a nation of law, not men. Both the government and court system of the United States are open and operating unfettered by either war, hostility or rebellion. There is no justification, legal or moral, for indefinite detention, failure to charge and try criminals openly and fairly, without tortured evidence, and the other string of hideous denials of due process being occasioned in our name.

It is instructive to reflect back on the wisdom of ancestors past, also confronted with novel legal challenges, and at a time (unlike today) when the literal existence of the United States had been in question from the Civil War, as expressed by the Supreme Court in Ex Parte Milligan:

Time has proven the discernment of our ancestors, for even these provisions, expressed in such plain English words that it would seem the ingenuity of man could not evade them, are now, after the lapse of more than seventy years, sought to be avoided. Those great and good men foresaw that troublous times would arise when rulers and people would become restive under restraint, and seek by sharp and decisive measures to accomplish ends deemed just and proper, and that the principles of constitutional liberty would be in peril unless established by irrepealable law. The history of the world had taught them that what was done in the past might be attempted in the future. The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times and under all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false, for the government, within the Constitution, has all the powers granted to it which are necessary to preserve its existence, as has been happily proved by the result of the great effort to throw off its just authority.

……

All other persons, citizens of states where the courts are open, if charged with crime, are guaranteed the inestimable privilege of trial by jury. This privilege is a vital principle, underlying the whole administration of criminal justice; it is not held by sufferance, and cannot be frittered away on any plea of state or political necessity. When peace prevails, and the authority of the government is undisputed, there is no difficulty of preserving the safeguards of liberty, for the ordinary modes of trial are never neglected, and no one wishes it otherwise; but if society is disturbed by civil commotion — if the passions of men are aroused and the restraints of law weakened, if not disregarded — these safeguards need, and should receive, the watchful care of those intrusted with the guardianship of the Constitution and laws. In no other way can we transmit to posterity unimpaired the blessings of liberty, consecrated by the sacrifices of the Revolution.

The courts and government of the United States of America are open and unfettered. It is time for the Obama Administration to quit frittering away the American foundation of law to the whims and winds of personal electoral desire and perceived political necessity. There can be no greater show of strength and character than to demonstrate to the world that we live and die with the principles we were founded with. Put the September 11th defendants on trial where they belong, as criminals in the Article III Federal court of jurisdiction.

A number of people have taken the DNC to task for its Rovian attack on RNC Chair Michael Steele for comments suggesting we might fail in Afghanistan (Glenn Greenwald, Greg Sargent, Adam Serwer). The only thing I would add to their comments is to note that not only a majority of the Democratic caucus in the House–as Glenn points out–but also two-thirds of Democrats in polls are ready to end the Afghan war, most of them strongly. Is the institutional Democratic Party trying to score political points on an issue that a solid majority of their party opposes? Really, we’ve gotten that stupid?!?

But what really demonstrates the stupidity of the move is how it puts us in ideological and political partnership with Liz “BabyDick” Cheney–who has called for Steele’s firing over his comments.

“RNC Chairman Michael Steele’s comments about the war in Afghanistan were deeply disappointing and wrong,” Cheney’s statement read. “The chairman of the Republican party must be unwavering in his support for American victory in the war on terror — a victory that cannot be accomplished if we do not prevail in Afghanistan. I endorse fully Bill Kristol’s letter to Chairman Steele. It is time for Chairman Steele to step down.”

Where BabyDick calls Steele’s comments “wrong” DNC calls them “unconscionable.” Where BabyDick demands that the RNC Chair “must be unwavering in support” for the Afghan war, DNC warns that Steele’s “words have consequences.”

Tim Kaine? A little unsolicited advice. BabyDick has spent a year and a half trying to undermine President Obama at every turn. She has done so using authoritarian dictates about what should and shouldn’t be done. It’s bad enough the party adopted a strategy pioneered by Karl Rove. But the day we’re moving in concert with Baby Dick and her Daddy? That’s a pretty good sign that we’ve made a mistake.

Being away to San Francisco to cover the Prop 8 Closing Arguments this week, I am just catching up on a few things. One I would like to point out is the contemptible and disingenuous op-ed Lanny Davis deposited at The Hill:

Two events last week involving elements of the Democratic Party who call themselves the “true progressives” show a danger they represent to the progressive change they say they want to effect. Together they offer President Barack Obama an opportunity for a “Sister Souljah moment” — perhaps to save the Democratic Party majority in both houses of Congress, as well as his progressive agenda in the last two years of his administration.

First was the success of Sen. Blanche Lincoln in June 8’s Arkansas Democratic primary, despite a campaign organized by these self-described progressives, along with certain labor unions.
……
The second event was a conference on that June 8 primary day, held in Washington and organized by the Campaign for America’s Future, a self-described “progressive” organization, which cheered denunciations of Obama for “retreat on Guantánamo [and] no movement on worker rights or comprehensive immigration reform,” according to The Washington Post’s Dana Milbank, and shouted down and nearly prevented liberal House Speaker Nancy Pelosi (D-Calif.) from speaking.
……
President Obama can confirm that the Democratic Party still stands for the centrist, Clintonian combination of fiscal conservatism, cultural moderation and progressive social programs that favor the middle class over the extremely wealthy — the best chance the Democrats have to hold their majorities in both houses of Congress and to enact the progressive changes that the critics on the left say they truly want.

The holier than thou arrogance and self entitled belligerence of Davis is simply stunning. As if Obama has not scorned the progressives and netroots enough already. Davis apparently feels he is the one who gets to decide who is, and who is not, a “true Progressive” and those he deems unfit are due the “Sister Souljah” execution hit. Nice. In the process of whining about progressive activism destroying Democratic party unity, he wants to divide, marginalize and destroy a significant sector of the Democratic party. Clearly Davis’ clarity of thought has been so addled by the toxic brine of the inbred Washington Beltway elitism he cannot see he is committing the very sins he complains of. Either that or he is so cravenly duplicitous he does not care. Davis has a history of such duplicity.

Davis similarly accuses the netroots of being “long on innuendo and personal attacks and short on substance”, which is hilarious for a man lobbing unlinked, uncited and unsupported screed in such a deceptive manner. For instance Davis directly intimates that if/when Blanche Lincoln loses in the general election it will because of the netroot and labor supported primary challenge of Bill Halter in Arkansas. This bit of self serving dishonesty of course neglects the fact that if Davis and his fellow centrist corporate shills really cared about retaining the seat in the general election, they should have supported Halter who arguably was a stronger candidate in the general than Lincoln. Not to mention that, in the general, Lincoln will be the only, and unified, Democratic candidate and thus will be judged on her record by the voters of Arkansas. Apparently Mr. Davis does not approve of the democratic concept of voters being able to express their choice in a primary and thinks only the wise sages of the Washington Beltway get to say who the party choice is.

As to his specific arguments in relation to Lincoln, Davis neglects to mention that the majority of Arkansas voters supported the public option, it is just that he and his corporatist doppelganger Blanche Lincoln who did not. Mr. Davis also failed to admit the only version of “health reform” Lincoln would grudgingly vote for was one that gave her constituents expensive health insurance but little in the way of more or usable health care. Par for Davis’ disingenuous course.

The other manufactured poutrage Davis throws down from his grandiose high horse related to the CAF presser where Nancy Pelosi was heckled by a noisy group of protesters on June 8th. Davis dishonestly intimates in his op-ed that the subject hecklers were the progressive netroots and CAF members he so despises protesting over the public option.

But if Davis had possessed any intellectual integrity or journalistic professionalism, he would have researched and realized the hecklers were not the netroots/CAF crowd, but instead were a separate and limited single issue group of nursing home professionals from an unrelated association known as ADAPT who were concerned about the Community Choice Act relating to long term care provisions for the elderly. Instead, Davis relied on an emailed report from a friend who was not at the event, but sent Davis a missive after reading about the conference from an unknown source. Oh, and a terminally shallow Washington Post column by the supposed humorist Dana Milbank. What a paragon of reportage Lanny Davis is.

Davis closes out his fine whine with this sage wisdom:

President Obama can confirm that the Democratic Party still stands for the centrist, Clintonian combination of fiscal conservatism, cultural moderation and progressive social programs that favor the middle class over the extremely wealthy — the best chance the Democrats have to hold their majorities in both houses of Congress and to enact the progressive changes that the critics on the left say they truly want.

Well, yeah, I guess. Or Mr. Obama could, alternatively, pull out of his hazy downward spiral and demonstrate he is the leader of the whole party, and entire country, and not just the centrist corporatist hacks like Lanny Davis.

Go “Sister Souljah” yourself Lanny Davis, you plutocratic Beltway corporatist huckster.

[The attached video is from a December 17, 2009 encounter Jane Hamsher had with Lanny Davis on MSNBC]

The title pretty much tells the tale. It was just stated on The Ed Schultz Show on MSNBC that:

Family of 11 victims of the Deep Horizon explosion to visit White House next week.

Well, that is just swell.

On the day a forlorn paucity of the media belatedly report on the deceptive collusion that the US Government and BP have been sitting on physical evidence, and factual conclusions drawn therefrom, contained in the full set of video feeds they both have been viewing from the outset of the BP Macondo/Deepwater Horizon blow out, we learn the White House is suddenly going to submit to external pressure and grant the victims of the BP/Deepwater Horizon homicides a walkby meet and greet ceremonial dog and pony show. After nearly two weeks of the victims screaming they have been forgotten, the audience has been approved from on high.

How refreshing. I hope the bereaved at least get an official White House coffee cup and Presidential keychain for their participation.

This is just wrong. It is not wrong for Obama to meet with the relatives and next of kin to the wrongfully deceased of an American natural disaster. It is wrong they had to beg for it, wrong it is being sold like a new product release, and wrong it is used as a convenient image makeover for an Obama Administration recalcitrant to treat mass scale criminal, and wholesale recklessly wanton environmental behavior as what it really is.

Think this is an exaggeration? Just wait and watch. Let me know when there is individual criminal liability where it belongs, as opposed to an inbred with the corporate culture, wink and nod plea and fine scheme in collusion with BP, Transocean, Halliburton and/or their powerful lobbyists. You know, criminal prosecution of the truly criminally negligent actors and authorities. The ones making the imminently foreseeable, cold, craven and disastrous decisions precipitating the needless death of eleven souls and the biggest environmental disaster in the history of the United States. Not the kind of cozy package deal the US government is known for giving BP when they have wreaked wholesale death and environmental destruction.

I do not presume to speak for the Deepwater deceased and their survivors; but I find it hard to believe they would not rather the President and American government show they will no longer accept the absent regulatory effort, coddling of profit before morals corporate greed, and “looking forward” blind ignorance of accountability for dereliction and destruction of the ethos we should, and claim to, stand for. The dead and their relatives are entitled to better than is given the latest basketball team to win a championship.

Mr. Obama, show the victims of the negligent homicide at Deepwater Horizon you have something more than meager food for souls forgot.

[Graphic from Rachel Maddow Show via Jalopnik]

The New York Times has an article up that will appear in the front section of Wednesday’s print edition decrying the fact that racial selection and exclusion still maintain in jury selection for trials in the South.

Arguments like these were used for years to keep blacks off juries in the segregationist South, systematically denying justice to black defendants and victims. But today, the practice of excluding blacks and other minorities from Southern juries remains widespread and, according to defense lawyers and a new study by the Equal Justice Initiative, a nonprofit human rights and legal services organization in Montgomery, Ala., largely unchecked.
…..
While jury makeup varies widely by jurisdiction, the organization, which studied eight Southern states — Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, South Carolina and Tennessee — found areas in all of them where significant problems persist. In Alabama, courts have found racially discriminatory jury selection in 25 death penalty cases since 1987, and there are counties where more than 75 percent of black jury pool members have been struck in death penalty cases.
…..
The Equal Justice Initiative study argues that jury diversity “is especially critical because the other decision-making roles in the criminal justice system are held mostly by people who are white.” In the eight Southern states the study examined, more than 93 percent of the district attorneys are white. In Arkansas and Tennessee, all of them are white.

Race based selection and exclusion in the formation and empanelment of juries is prohibited, and rightly so. It is considered improper, unethical and a violation of duty to the court, bar and public. And rightfully so. There mere inference of it, as is made clear by the numerous instances discussed in the NYT article can bring strong questions of propriety, especially for representatives of the people, i.e. prosecutors. And, as the Equal Justice Initiative points out, the systematic exclusion of people of color from public leadership roles, like prosecutors, is just as problematic and disgraceful.

It is a righteous thing the New York Times has emphasized and drawn attention to the depressing report by the Equal Justice Initiative on racial exclusion in the law. Which makes it all the more distressful that the famed Gray Lady of the Times never evinced the same concern about analogous inferences which could just as easily be drawn about Elena Kagan’s record of faculty hiring at Harvard Law School.

First raised by Duke Law Professor Guy Uriel Charles, and noted by other bloggers like Glenn Greenwald and yours truly (but never substantively addressed or reported by the New York Times or other major media), Kagan has a record that puts the examples in the New York Times article on Southern jury biases to shame. From Professor Charles:

But what about people of color? How could she have brokered a deal that permitted the hiring of conservatives but resulted in the hiring of only white faculty? Moreover, of the 32 new hires, only six seven were women. So, she hired 25 white men, six white women, and one Asian American woman. Please do not tell me that there were not enough qualified women and people of color. That’s a racist and sexist statement. It cannot be the case that there was not a single qualified black, Latino or Native-American legal academic that would qualify for tenure at Harvard Law School during Elena Kagan’s tenure. To believe otherwise is to harbor troubling racist views.

Third, what is the justification for putting someone on the Supreme Court without a demonstrated commitment to opening barriers for women and people of color? Kagan’s performance as Dean at Harvard raises doubts about her commitment to equality for traditionally disadvantaged groups. I am eager to be convinced that she is committed to full equality for marginalized groups, but I’d like to see the evidence.

As I noted in the above linked post, the seminal Supreme Court case on racial selection and exclusion in jury empanelment (voir dire) is Batson v. Kentucky. If Elena Kagan’s Harvard hiring record were considered under the Batson standard, it would raise immediate serious questions. While, as the Times article points out, there have been weaknesses in the application of Batson (in fact, that is the point of the article and the Equal Justice Initiative report), the fact remains serious ethical questions are raised by an appearance of violation.

So, why is it that the New York Times is suddenly up in arms about racial selection and exclusion in Southern Juries, but has no similar lofty concerns about the same inferences about the putative next Supreme Court Justice? Democrats, including then Senator Barack Obama, groused about the nomination of Sam Alito and John Roberts as it was; can you imagine the shrieking and howling that would have occurred if either Alito or Roberts had a record with the negative racial exclusionary inferences of that possessed by Elena Kagan? Why are they all so silent and credulous now in the face of damning inference?

NBC News is reporting Elena Kagan is Barack Obama’s nominee to replace the liberal lion, Justice John Paul Stevens. Kagan is a remarkably poor choice.The stunning lack of curiosity and involvement in the important legal issues of her age, not to mention the law itself, and remarkable absence of compelling written work and record on the part of Elena Kagan has been previously covered.

I have previously explained the total lack of any experience – ever – of any kind – on Kagan’s part in the court system of the United States. Kagan has never set foot as an attorney of record into a trial courtroom in the United States, not even a small claims justice court; nor for that matter, any appellate court save for the literally handful of spoon fed cases she suddenly worked on as Solicitor General. Kagan has never been a judge in any courtroom, of any court, in the United States. Quite frankly, there is not even any evidence Elena Kagan has sat as a judge for a law school moot court exercise. I have had paralegals and secretaries with better experience than this. Does a nominee for the Supreme Court have to be Gerry Spence, Pat Fitzgerald or David Boies? No, but it would be nice if they had the passion, curiosity and commitment to their profession to go to court at least once. Never has there been a United States Supreme Court Justice with such a complete lack of involvement in the court system. Never.

Duke Law Professor Guy-Uriel Charles has damningly demonstrated a Kagan record of lily white hiring, and corresponding shunning of people of color, at Harvard Law under her guidance that, if considered under the seminal Batson standard of prejudice, would have netted Kagan a sanction from the court and a potential misconduct referral to the appropriate bar authority.

Curiously, and very notably, the only pushback by an Obama Administration, who has consistently gone beyond the call of duty in protecting and bucking up a patently poor nominee in Elena Kagan, has been on the racial hiring component exposed by Professor Charles. Here are the “talking points” memo the Obama Administration sent around to its acolytes and stenographic mouthpieces in the press and internet ether to counter the substantive criticism of Elena Kagan.

Notice anything missing in the official Obama White House talking points? I do. They are solely focused on the racial exclusion charge (and here is the response eating their lunch on that). Did you see what is NOT responded to, or addressed, in any way, shape or form by the White House? If you guessed “Elena Kagan’s complete lack of any record whatsoever of participation or accomplishment in the legal process of the United States”, take a bow, you are correct.

It is simply mind boggling Barack Obama and his coterie of supposedly enlightened, informed and experienced advisors would contemplate, much less fight tooth and nail for, an inexperienced and unqualified, incurious, and unmotivated in the US legal process, cipher like Elena Kagan. They may be harsh words, but they are the absolute truth.

One of the most laughable memes floated by Kagan’s inner circle of friends and sycophants is that she is some sort of wondrous uniter who could single handedly suave Anthony Kennedy to her side like some kind of SCOTUS Svengali. First off, this is the biggest pile of bull manure I have ever experienced; not to mention Kennedy is not so young anymore and may not be around so long. Oh, also, there is less than zero evidence the wet behind the ears rookie on the Supreme bench ever does squat along the lines people are suggesting as far as “persuasion” they glibly think Kagan can pull off.

The narrative being pitched about Kagan is the most contrived I have ever heard on a Supreme Court nominee. She has little record of legal accomplishment in any area actually in the active legal profession (although she apparently is very good at schmoozing monied corporations and benefactors of the Ivy League elite). None. She had never even set foot into a courtroom on behalf of a client, much less as a judge on a case in controversy, prior to being named Solicitor General. Her resume of written work is about the equivalent of an aggressive law school student on the top of their school’s law review; maybe less.

Kagan’s record as Solicitor General is shaky, at best; she wrote a weak amicus brief in Mohawk Industries, was unfocused on her oral argument of Citizens United, stepped in deep manure during the oral argument in Holder v. HLP when she said the material support criminal charge should be applied to attorneys representing disadvantaged clients, and no less than the Supreme Court themselves, in an 8-1 decision in US v. Stevens, basically declared her briefing and argument in said case to be laughably ill conceived, wrongheaded and misguided. Kagan herself admits she is so inexperienced she is like a deer in headlights before the Supreme Court. This is the woman who is going to be the great liberal persuader? Please; what a patently absurd contention.

Elena Kagan would be the most unqualified nominee in the history of the Supreme Court; she makes Harriet Miers look like William O. Douglas. Don’t believe me? Take a look at Miers’ curriculum vitae and slate of authored works; then think about the emptiness of Kagan’s written work and nature of her service. Both are clearly accomplished women, but it is hard to see how Kagan is superior to Miers, and Miers was flamed universally across the political spectrum as being an absurd nominee. How can Elena Kagan now be seen as superior?

On another front, what happened to the famous Obama demand for a nominee with “empathy” and a connection to the experiences and plight of the common American? Elena Kagan is a daughter of privilege from Manhattan who has spent her career in the rarified air of the cloistered elite, never even deigning to represent or work with the common citizen. Where did Kagan acquire her capacity for “empathy”? The University of Chicago faculty lounge? Perhaps teas and galas for the individual and corporate monied benefactors of Harvard? What happened to this criteria we have relentlessly been told was foremost in the mind of President Obama?

In the space of 48 hours, we have now been presented with a Democratic Administration coming out in favor of perverting and undermining Miranda, siding with the Federalist Society wet dream of breaking up the 9th Circuit and now the appointment of a blank slate unqualified Supreme Court nominee whose main credentials are that she has worked with Barack Obama and is in favor of unitary executive powers. To say the news on the legal and Constitutional front is depressing and demoralizing would be the understatement of the still young decade.

As DDay reported, the Reid-Schumer-Menendez draft on Immigration Reform calls for a national ID card (which they call a “biometric” or “fraud proof” social security card). Perhaps in a move to placate civil libertarians, the draft insists the card will only be used for employment.

It will be unlawful for any person, corporation; organization local, state, or federal law enforcement officer; local or state government; or any other entity to require or even ask an individual cardholder to produce their social security card for any purpose other than electronic verification of employment eligibility and verification of identity for Social Security Administration purposes.

Now, let’s pretend for a moment that this national ID program would actually fix the problem of employers trying to hire cheap, vulnerable labor rather than paying market rate wages. Let’s pretend for a moment that this national ID program would avoid all of the security and privacy issues that such a program will be bound to have.

Why in fuck’s name would anyone with a “D” next to their name advocate for a national card–of any sort–without at the same time attaching it to automatic voter registration, also tied to the card? Why would the Democratic party propose any national program that did not, at the same time, insist on getting rid of our byzantine voter registration system that leaves large chunks of the population exposed to disenfranchisement? Even if this is just a stunt designed to prove Democrats are “serious” about compromise so they can embarrass the bigots even more for their refusal to accept the compromise, why would you ever miss the opportunity to tie a universal registration card to a potential fix to the problems in our election system?

Last week Glenn Greenwald penned a solid case delineating why current Solicitor General Elena Kagan, who is at the top of the purported Obama “short list”, would make a poor nominee to replace the retiring Justice John Paul Stevens on the Supreme Court. Despite the hard truth in Greenwald’s facts and arguments, he has been blistered by both the Obama Administration and their apologists and fanboys. The Administration has, as reported by Sam Stein, even enlisted a hit team of loyalist flaks and supporters to discredit Greenwald and his article.

The reason the White House finds itself in the position of fighting off its own base in the first place is because Greenwald is dead on the money with his analysis, criticism and conclusion that Kagan is a poor nominee; and especially considering it is Stevens’ critical seat she would be filling. Glenn’s facts and argument speak for themselves, but there is an additional area neither he, nor anyone else, has substantively touched on which militates against Kagan. Elena Kagan is so terminally inexperienced with the American court system as to be unqualified to serve on the Supreme Court.

I appeared in three different courthouses last Friday. Which is two more than Elena Kagan has appeared in as either an attorney or judge during her entire legal career. Her first appearance in the Supreme Court as Solicitor General, little more than six months ago, was the first time she had substantively appeared in any court. Ever. You can still count her total number of live court experiences (all appellate arguments) on one hand. The complete absence of experience and seasoning showed in several key areas in Kagan’s uneven oral argument presentations, and the claim Kagan is some kind of wonderful talent who necessarily would bring diverse Supreme Court justices together exposed as unsupported fawning fantasy.

The American trial court system is literally the backbone of our rule of law; they are where the public substantively interacts with the law and their law is meted out, as well as being where the foundation and record for appellate cases and controversies are made and perfected. How is it appropriate to be considering a woman for a position that will impact evidentiary, procedural and substantive trial processes – for every trial court in the country; federal, state and local – when she has never been in one? There are forty Justices in the long and glorious history of the Supreme Court who had no prior judicial experience; there are none I am aware of who had the nearly complete absence of any practical legal court experience as an attorney, much less as a judge, such as is the case with Elena Kagan.

These are complex situations and issues arising in uniquely dynamic confrontational adversary settings; they are not fully cognizable nor understandable from the cold isolation of a printed record. If you have never been in the halls, bowels and docks of trial courts, you just do not know. An understanding of the dynamics, biases, unwritten rules, grit and feel of trial level courts simply cannot be gained without at least some exposure to them. Elena Kagan has absolutely none, yet Barack Obama and the Kagan fan club blithely think she should be given a lifetime appointment to review and affect the daily literal life and death matters occurring there. She is not fit for the job, and it is reckless and deplorable the Obama White House does not realize it.

It is already such that the Supreme Court has only one member, Sonia Sotomayor, with any experience as a trial judge, but at least the other Justices have varying substantial histories and experience as attorneys and judges in a variety of trial and inferior appellate courts. Elena Kagan has squat. The cloistered imperious disconnect between the hallowed halls of the Supreme Court and the actual public judicial system would go from the already bad to far worse were Kagan confirmed to replace Stevens. An extremely troubling move being contemplated by a President who ran on the supposed mantle of being an experienced lawyer, Constitutional scholar and wise leader.

One of the heavyweights rolling out to buck up Kagan against Greenwald was Supreme Court appellate specialist Tom Goldstein of Akin Gump and SCOTUSBlog fame and fortune. Goldstein savaged Glenn by painting him, and other unnamed progressive Kagan critics, as “wingnuttery extremists” operating on the “ideological fringes”. Goldstein’s attack posturing is unfounded and scurrilous, all the while as he conveniently omits any disclosure of his own personal connection to Kagan, her former Harvard largesse and dependence on the acts and kindness of Supreme Court Justices.

Yes Mr. Goldstein, Greenwald and a lot of us others believe the executive branch is not above the law, that the Fourth Amendment and FISA laws actually have meaning and that the US government should not sanction and institutionalize torture. I guess these tenets are what sensible “centrists” like the oh so superior Goldstein consider indicative of the radical fringe left. Funny, at one time they were considered the kind of concepts the United States was founded and built upon.

Irrespective of Goldstein’s malevolent and false posturing, the theoretical policy distinctions he strains to argue are one thing; Kagan’s complete lack of foundational experience is quite another. If Goldstein is going to slough off this disqualifying fact, it will require greater fictional liberties than even his new self promoting television show.

It strikes me as necessary to follow up a bit on the death of the Dawn Johnsen nomination to lead the Office of Legal Counsel at the Department of Justice. Specifically, it needs to be clear the conventional wisdom of the main media, and even a surprising number of normally more clear headed progressive bloggers, that the nomination failed because of opposition from Republican obstruction coupled with opposition by Ben Nelson, is completely and patently false.

The false meme was already in play with the first substantive reporting by Sam Stein at Huffington Post as I noted yesterday. It is being propagated by the Washington Post (Republicans and “moderate lawmakers”), the New York Times (conservatives and two Democrats), even progressive stalwarts like Glenn Greenwald and McJoan at DKos have discussed the effects of the Republicans and Ben Nelson on the torpedoed nomination (although, to be fair, neither ascribes full blame on the GOP and Nelson).

Perhaps the best example of purveying the false wisdom comes from Jake Tapper at ABC. Tapper, in an article supposedly about the Obama White House not having the stomach for a fight on Johnsen, nevertheless proceeds to regurgitate the usual suspects:

Senate Republicans opposed her nomination overwhelmingly, meaning Senate Majority Leader Harry Reid, D-Nev., needed 60 votes to bring her nomination to the floor of the Senate for a vote.

The White House put all the blame on the Republican minority — White House spokesman Ben LaBolt said, “Senate Republicans will not allow her to be confirmed” — but it was a bit more complicated than that.

A Senate Democratic leadership source said that throughout 2009 two Democrats said they would vote against her — Sen. Ben Nelson, D-Neb., and Sen. Arlen Specter, D-Pa. The only Republican of the 40-member GOP caucus who said he would vote for her was her fellow Hoosier, Sen. Dick Lugar, R-Ind.
…..
Specter remained opposed to Johnsen’s nomination even after he switched parties in April 2009, but his primary opponent Rep. Joe Sestak, D-Pa., began to attack Specter for his opposition to her nomination.

Johnsen’s nomination expired at the end of 2009, but in January 2010 Specter said he’d vote for her.

This is a bunch of bunk. I have previously written extensively on why there were at least 60 votes for Johnson’s confirmation for the entire second half of last year after Al Franken was sworn in, and why there still were 60 votes for her confirmation this year upon Obama’s renomination, even after the Scott Brown victory in Massachusetts. If you have any question, please click through and refer to those articles; for now though, I want to revisit the false light being painted on Ben Nelson and Arlen Specter on the nomination’s failure.

To date, the only journalist I have seen to even come close to being accurate about Ben Nelson’s status on Johnsen’s nomination is Charlie Savage at the New York Times, who yesterday briefly noted:

And it was not clear whether Mr. Nelson would join Republicans in trying to block a vote on Ms. Johnsen with a filibuster.

And that is the only germane question. It matters not whether Ben Nelson likes Johnsen, nor even if he would vote for her on the floor; the only salient issue is whether Nelson would vote for cloture and permit a floor vote. Ben Nelson never said he would block cloture. Never. And when questioned by the Indianapolis Star, he said the WH had never even discussed the subject with him.

Nelson said Wednesday that he doubted Johnsen’s nomination would be brought to a vote.

“We have to let the administration decide what they want to do,” Nelson said. Asked if he has told the administration whether he’d vote for Johnsen, Nelson said he hasn’t been asked.

There is no evidence whatsoever Nelson would have voted against allowing the nominee of Barack Obama, the sitting President of his own party, to have an up or down vote. None. How Nelson would have voted on the up or down floor vote is irrelevant as there were far more than the 51 votes for confirmation in an up or down vote. Ben Nelson was not the problem.

Arlen Specter was not the problem either. Specter’s office directly confirmed to me that he was, and has been, willing to allow cloture on the up or down floor vote for Johnsen, and likely willing to support her in said up or down vote, ever since his second face to face meeting with Johnsen on May 12, 2009 and Specter confirmed the same to Marcy Wheeler in late February. The failure of the Johnsen nomination cannot be laid at the feet of Arlen Specter.

Oh, and one other thing should also be kept in mind, there is a very good chance that, if it ever came down to them, either or both of the Maine twins, Olympia Snowe and Susan Collins, would have permitted cloture on a floor vote too. They have a record of not blocking votes on Democratic Presidential nominees going back to the Clinton era and leading Maine women’s groups were very optimistic they would allow it on Johnsen if it came down to them (which I also separately confirmed with the groups).

So, it was not Ben Nelson who killed the nomination of Dawn Johnsen, nor was it Arlen Specter or Senate Republicans. No, the sole reason Dawn Johnsen is not leading the OLC is that Barack Obama and his coterie of advisors did not want Dawn Johnsen leading the OLC. The Obama Administration cravenly hung their own nominee out to dry, and the reason is almost certainly that she was not compatible with the Administration’s determination to maintain, if not expand, the Bush/Cheney positions on unbridled executive power, indefinite detention without due process as well as warrantless wiretapping and other Fourth Amendment invasions.

You want to know why the Obama White House killed their own nomination of Dawn Johnsen? Glenn Greenwald put it so well that I cannot improve on it and will just adopt and incorporate his spot on words:

virtually everything that Dawn Johnsen said about executive power, secrecy, the rule of law and accountability for past crimes made her an excellent fit for what Candidate Obama said he would do, but an awful fit for what President Obama has done. To see how true that is, one can see the post I wrote last January detailing and praising her past writings, but all one really has to do is to read the last paragraph of her March, 2008 Slate article — entitled “Restoring Our Nation’s Honor” — in which she outlines what the next President must do in the wake of Bush lawlessness:

The question how we restore our nation’s honor takes on new urgency and promise as we approach the end of this administration. We must resist Bush administration efforts to hide evidence of its wrongdoing through demands for retroactive immunity, assertions of state privilege, and implausible claims that openness will empower terrorists. . . .

Here is a partial answer to my own question of how should we behave, directed especially to the next president and members of his or her administration but also to all of use who will be relieved by the change: We must avoid any temptation simply to move on. We must instead be honest with ourselves and the world as we condemn our nation’s past transgressions and reject Bush’s corruption of our American ideals. Our constitutional democracy cannot survive with a government shrouded in secrecy, nor can our nation’s honor be restored without full disclosure.

What Johnsen insists must not be done reads like a manual of what Barack Obama ended up doing and continues to do — from supporting retroactive immunity to terminate FISA litigations to endless assertions of “state secrecy” in order to block courts from adjudicating Bush crimes to suppressing torture photos on the ground that “opennees will empower terrorists” to the overarching Obama dictate that we “simply move on.” Could she have described any more perfectly what Obama would end up doing when she wrote, in March, 2008, what the next President “must not do”?

I find it virtually impossible to imagine Dawn Johnsen opining that the President has the legal authority to order American citizens assassinated with no due process or to detain people indefinitely with no charges. I find it hard to believe that the Dawn Johnsen who wrote in 2008 that “we must regain our ability to feel outrage whenever our government acts lawlessly and devises bogus constitutional arguments for outlandishly expansive presidential power” would stand by quietly and watch the Obama administration adopt the core Bush/Cheney approach to civil liberties and Terrorism. I find it impossible to envision her sanctioning the ongoing refusal of the DOJ to withdraw the January, 2006 Bush/Cheney White Paper that justified illegal surveillance with obscenely broad theories of executive power. I don’t know why her nomination was left to die, but I do know that her beliefs are quite antithetical to what this administration is doing.

There is your answer. In brutal black and white. And progressives better wake up and start paying attention, because what you see here is extremely telling about the mindset and backbone, or severe lack thereof, the Obama White House has for the coming nomination and confirmation battle to replace Justice Stevens. If past is prologue, we are on the cusp of shifting the ideological balance of the Supreme Court severely to the right – under a Democratic “liberal” President.