Elena Kagan is a notably opaque Supreme Court nominee. In order to perform their constitutional function, the members of the Senate will have to reach a conclusion about her views and whether they are in the mainstream. Certain of the documents that she has generated give clues that lead to disturbing answers. One such document is her 1987 memorandum to Supreme Court Justice Thurgood Marshall regarding the petition for certiorari in Pughsley v. O’Leary, written while she was one of his clerks. In that memo, Kagan demonstrates how far out of the …
Looking ahead to today’s Senate Judiciary Committee confirmation hearing for Attorney General nominee Eric Holder, ranking member Sen. Arlen Specter (R-PA) says he is worried about Holder’s “ability to maintain his independence from the president.” This is the wrong question. The proper question is one of judgment: Does the nominee demonstrate the kind of judgment necessary to advise the President in a responsible and constitutionally appropriate way? There are at least five issues which raise serious questions about Holder’s judgment: Pardoning Terrorists: As deputy attorney general, Holder played an active …
For more than three years, a diverse coalition from all quarters of the legal community has been pushing Congress to help restore Americans’ Sixth Amendment guarantee to assistance of counsel in all criminal prosecutions. This right has been steadily eroded since a Deputy Attorney General issued a memo in 1999 outlining how the Department of Justice should make prosecutorial decisions when investigating possible wrongdoing by companies and their employees. That attorney … Pressident-elect Barack Obama’s Attorney General appointee Eric Holder. Criminal defense and civil liberties lawyer Harvey Silverglate writes in …
The Sixth Amendment of the U.S. Constitution guarantees that “in all criminal prosecutions, the accused shall enjoy … the assistance of counsel for his defense.” Fundamental to ensuring the constitutional right to an attorney is the attorney-client privilege. For almost a decade now, the Department of Justice under both Presidents Clinton and Bush, has been steadily undermining this fundamental protection against unjust criminal punishment. Despite recent efforts by the DOJ to reverse course, a broad bipartisan coalition has formed to support legislation that will restore the privilege. The coalition includes …
