# Elena Kagan should not be confirmed as Justice **URL:** \ **Category:** Great Debates\ **Created:** [July 3, 2010, 4:46am UTC](https://boards.straightdope.com/t/elena-kagan-should-not-be-confirmed-as-justice/545398 "2010-07-03T04:46:37Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![foolsguinea](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/foolsguinea/32/14751_2.png) [@foolsguinea](https://boards.straightdope.com/u/foolsguinea)\ **Post date:** [July 3, 2010, 4:46am UTC](https://boards.straightdope.com/t/elena-kagan-should-not-be-confirmed-as-justice/545398/1 "2010-07-03T04:46:37Z")
Looking at this thread, I am struck by the fact that Elena Kagan filed a “friend of the court” brief claiming that even if a prosecutor frames a defendant, said prosecutor should be considered personally inviolate. > **[Suing a prosecutor that framed innocent men](https://boards.straightdope.com/sdmb/showthread.php?t=538761)** > > …and the response that the prosecutors can’t be sued. Back in 1978, two men, Curtis McGhee and Terry Harrington, were convicted of murdering security guard John Schweer, who had been killed while guarding a car lot. Their conviction rested almost... I don’t want her on the court if that’s her attitude. Without the potential for personal repercussions, those who work in an organization are free to pass the buck all the way to extinction event. ---
**Author:** ![Kimmy\_Gibbler](https://avatars.discourse-cdn.com/v4/letter/k/bbe5ce/32.png) [@Kimmy\_Gibbler](https://boards.straightdope.com/u/Kimmy_Gibbler)\ **Post date:** [July 3, 2010, 5:01am UTC](https://boards.straightdope.com/t/elena-kagan-should-not-be-confirmed-as-justice/545398/2 "2010-07-03T05:01:38Z")
> [@foolsguinea](#): > > Looking at this thread, I am struck by the fact that Elena Kagan filed a “friend of the court” brief claiming that even if a prosecutor frames a defendant, said prosecutor should be considered personally inviolate. So, of course, the first thing you did, being so struck, was to read her amicus brief and the other briefing in the case so that you could appreciate the scope of issues (issues debatable enough to get cert in the Supreme Court) and the relative strengths and weaknesses of each side’s case, rather than form an immediate judgment on a half-understood legal concept, _nicht wahr_? ---
**Author:** ![2sense](https://avatars.discourse-cdn.com/v4/letter/2/e47774/32.png) [@2sense](https://boards.straightdope.com/u/2sense)\ **Post date:** [July 3, 2010, 6:27am UTC](https://boards.straightdope.com/t/elena-kagan-should-not-be-confirmed-as-justice/545398/3 "2010-07-03T06:27:21Z")
So in your annoyance at \*\* foolsguinea\*\*'s jumping to conclusions you immediately jump to the conclusion that she has a legal rather than a moral or other objection? ---
**Author:** ![The\_Second\_Stone](https://avatars.discourse-cdn.com/v4/letter/t/bbe5ce/32.png) [@The\_Second\_Stone](https://boards.straightdope.com/u/The_Second_Stone)\ **Post date:** [July 3, 2010, 7:24am UTC](https://boards.straightdope.com/t/elena-kagan-should-not-be-confirmed-as-justice/545398/4 "2010-07-03T07:24:35Z")
So John Adams, having defended British soldiers accused of shooting rioters, should not have been president? Kagan was instructed by her clients to argue this and other positions. A lawyer who never argues on the side you disagree with is going to be a very rare thing. I’ve argued for causes I haven’t personally agreed with, causes I’ve later changed my mind about and causes I was utterly bored by. I don’t hold myself or any other lawyer in disregard for this reason. ---
**Author:** ![foolsguinea](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/foolsguinea/32/14751_2.png) [@foolsguinea](https://boards.straightdope.com/u/foolsguinea)\ **Post date:** [July 3, 2010, 8:39pm UTC](https://boards.straightdope.com/t/elena-kagan-should-not-be-confirmed-as-justice/545398/5 "2010-07-03T20:39:20Z")
I still want to know if she is in general against personal accountability for procedural abuses & failures within an organizational structure. I don’t want her overturning a hypothetical law that places criminal charges on individual oil drillers for neglecting safety protocols. Restricting repercussions to corporate penalties allows buck-passing; being caught breaking the rules then becomes a matter of additional expense, not personal suffering. If she’d been serving a client, I wouldn’t care so much. But a “friend of the court” brief implies she (or, her office, embodied in her) had a choice in what position to take & took that one. I don’t expect better from the Obama Administration. I imagine anyone he nominates will think this way, & perhaps she’s as good as we’re going to get. It’s just, in her case we have a paper trail, & this sort of thing should be called out. If prosecutors who abuse their office can’t be sued, what then? Should we expect them to be dealt with administratively? I don’t think that would solve the problem. And criminal charges seem far too unlikely. She was wrong. I get why she did it, in her shoes with her experience I might have written the same thing; I acknowledge my human frailty. But here she is objectively wrong, in that she chose a position that has lower utility for fighting corruption than the opposed position. Again, she acted not as a defense attorney nor devil’s advocate, but literally advocating absolute prosecutorial immunity, even when prosecutors concoct evidence. ---
**Author:** ![foolsguinea](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/foolsguinea/32/14751_2.png) [@foolsguinea](https://boards.straightdope.com/u/foolsguinea)\ **Post date:** [July 3, 2010, 8:40pm UTC](https://boards.straightdope.com/t/elena-kagan-should-not-be-confirmed-as-justice/545398/6 "2010-07-03T20:40:38Z")
And John Adams was a putz. That’s your defense? No, John Adams should not have been President, & his contemporaries regretted his election. ---
**Author:** ![Attack\_from\_the\_3rd\_dimension](https://avatars.discourse-cdn.com/v4/letter/a/b38774/32.png) [@Attack\_from\_the\_3rd\_dimension](https://boards.straightdope.com/u/Attack_from_the_3rd_dimension)\ **Post date:** [July 3, 2010, 9:01pm UTC](https://boards.straightdope.com/t/elena-kagan-should-not-be-confirmed-as-justice/545398/7 "2010-07-03T21:01:33Z")
> [@foolsguinea](#): > > And John Adams was a putz. That’s your defense? > > No, John Adams should not have been President, & his contemporaries regretted his election. I’m missing something here. How is John Adams a putz? ---
**Author:** ![The\_Second\_Stone](https://avatars.discourse-cdn.com/v4/letter/t/bbe5ce/32.png) [@The\_Second\_Stone](https://boards.straightdope.com/u/The_Second_Stone)\ **Post date:** [July 3, 2010, 9:03pm UTC](https://boards.straightdope.com/t/elena-kagan-should-not-be-confirmed-as-justice/545398/8 "2010-07-03T21:03:04Z")
Well, there we have it. A lawyer should not represent the interests of the client, but instead their own personal conscience, and governmental official immunity should not be the general rule of law as it now is, but the exception because I’ve haven’t read any of the cases or briefs or history has thought about it for a good 10 minutes and concluded that I know best. And the amicus brief? When the lawyer who is hired to write the amicus brief does so, it is no different than writing a party brief in that it is not optional to do the job you’ve been hired to do. You don’t get to pass on doing your job if you disagree with it. ---
**Author:** ![Ludovic](https://avatars.discourse-cdn.com/v4/letter/l/7ab992/32.png) [@Ludovic](https://boards.straightdope.com/u/Ludovic)\ **Post date:** [July 3, 2010, 9:03pm UTC](https://boards.straightdope.com/t/elena-kagan-should-not-be-confirmed-as-justice/545398/9 "2010-07-03T21:03:32Z")
> [@Attack\_from\_the\_3rd\_dimension](#): > > I’m missing something here. How is John Adams a putz? Well, he wasn’t a happy Orthodox Jewish guy, so that narrows it down a bit. ---
**Author:** ![Attack\_from\_the\_3rd\_dimension](https://avatars.discourse-cdn.com/v4/letter/a/b38774/32.png) [@Attack\_from\_the\_3rd\_dimension](https://boards.straightdope.com/u/Attack_from_the_3rd_dimension)\ **Post date:** [July 3, 2010, 9:30pm UTC](https://boards.straightdope.com/t/elena-kagan-should-not-be-confirmed-as-justice/545398/10 "2010-07-03T21:30:34Z")
> [@Ludovic](#): > > Well, he wasn’t a happy Orthodox Jewish guy, so that narrows it down a bit. Feh, not to get all schmaltzy about the founders, he was a mensch for defending the British, and showed why it’s not kosher to deprive someone of representation. Plus, he was paid bupkes for it. ---
**Author:** ![Camus](https://avatars.discourse-cdn.com/v4/letter/c/ba8739/32.png) [@Camus](https://boards.straightdope.com/u/Camus)\ **Post date:** [July 4, 2010, 3:42am UTC](https://boards.straightdope.com/t/elena-kagan-should-not-be-confirmed-as-justice/545398/11 "2010-07-04T03:42:46Z")
> [@2sense](#): > > So in your annoyance at \*\* foolsguinea\*\*'s jumping to conclusions you immediately jump to the conclusion that she has a legal rather than a moral or other objection? It’s probably for over-simplifying and/or straw-manning the argument laid out in Kagan’s [brief](http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/08-1065_PetitionerAmCuUSA.pdf). And based on the OP, it’s likely that **foolsguinea** hasn’t even read it to see if actually does say what **foolsguinea** is arguing it says. [QUOTE=Kagan’s amicus curiae brief] This Court has interpreted Section 1983 to provide absolute immunity to prosecutors for activities “intimately associated with the judicial phase of the criminal process.” Imbler v. Pachtman, 424 U.S. 409, 430 (1976). The Court has done so because that immunity comports with the common law tradition and because the threat of liability could alter prosecutorial decisions and divert prosecutors’ time and energy into defending civil suits instead of vindicating the criminal laws. Id. at 421-429. If the allegations here are true, petitioners engaged in prosecutorial misconduct of an execrable sort, involving a complete breach of the public trust. But absolute immunity reflects a policy judgment that such conduct is properly addressed not through civil liability, but through a host of other deterrents and punishments, including judicial oversight of criminal trials, and criminal and professional disciplinary proceedings against prosecutors. Imbler, 424 U.S. at 429. The Court has long held that, given these alternative tools, allowing criminal defendants to bring civil suits against prosecutors will produce few additional benefits and could cause serious harm. What respondents seek here is, in every effect, a subversion of absolute prosecutorial immunity. To be sure, this Court has recognized that a prosecutor “neither is, nor should consider himself to be, an advocate”—and thus not absolutely immune—“before he has probable cause to have anyone arrested.” Buckley v. Fitzsimmons, 509 U.S. 259, 274 (1993). But the Court has never said that a prosecutor can be liable for actions at trial, simply because they relate back to earlier conduct at the investigatory stage (i.e., before probable cause is established). To do so would transform the absolute immunity of Imbler into little more than a pleading rule; plaintiffs barred under Imbler would simply draft their complaint to refer to the prosecutor’s investigation and preparation of the case instead of his activity at trial. [/QUOTE] ---
**Author:** ![monavis](https://avatars.discourse-cdn.com/v4/letter/m/e0b2c6/32.png) [@monavis](https://boards.straightdope.com/u/monavis)\ **Post date:** [July 4, 2010, 12:00pm UTC](https://boards.straightdope.com/t/elena-kagan-should-not-be-confirmed-as-justice/545398/12 "2010-07-04T12:00:11Z")
Since she taught law at a prestigious university, she should know the law. Being a supreme court justice that should be the thing all justice’s do. One should not be a Supreme court Justice to serve their own agenda, but interpret the law as it states in the constitution. She should be as qualified as any Justice now on the bench. Any judge, weither on the local bench or the supreme court, should be fair and stick to the law, not use one’s religion or personal thinking to interpret the Constitution! ---
**Author:** ![foolsguinea](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/foolsguinea/32/14751_2.png) [@foolsguinea](https://boards.straightdope.com/u/foolsguinea)\ **Post date:** [July 6, 2010, 7:40pm UTC](https://boards.straightdope.com/t/elena-kagan-should-not-be-confirmed-as-justice/545398/13 "2010-07-06T19:40:23Z")
> [@Wikipedia](#): > > An _ **amicus curiae** _ (also spelled _ **amicus curiæ** _; plural _amici curiae_) is someone, not a party to a case, who volunteers to offer information to assist a court in deciding a matter before it. The information provided may be a legal opinion in the form of a brief (which is called an **amicus brief** when offered by an _amicus curiae_), a testimony that has not been solicited by any of the parties, or a learned treatise on a matter that bears on the case. The decision on whether to admit the information lies at the discretion of the court. The phrase _amicus curiae_ is legal Latin and literally means\*\* “friend of the court”\*\*. [emph. added] > [@Wikipedia](#): > > The Solicitor General determines the legal position that the United States will take in the Supreme Court. In addition to supervising and conducting cases in which the government is a party, the Solicitor General’s office also files _amicus curiae_ briefs in cases in which the federal government has a significant interest in the legal issue. The Solicitor General’s office argues on behalf of the government in virtually every case in which the United States is a party, and also argues in most of the cases in which the government has filed an amicus brief. In the federal courts of appeals, the Office of the Solicitor General reviews cases decided against the United States and determines whether the government will seek review in the Supreme Court. The Solicitor General’s office also reviews cases decided against the United States in the federal district courts and approves every case in which the government files an appeal. For whom exactly was Kagan working? Who was her boss or client? If she doesn’t agree with the argument she was making, then was she making it on behalf of Obama? Is this then his position? Then what I said above applies: > [@foolsguinea](#): > > I don’t expect better from the Obama Administration. I imagine anyone he nominates will think this way, & perhaps she’s as good as we’re going to get. It’s just, in her case we have a paper trail, & this sort of thing should be called out. > [@Kagan's amicus curiae brief](#): > > _If the allegations here are true, petitioners engaged in prosecutorial misconduct of an execrable sort, involving a complete breach of the public trust. But absolute immunity reflects a policy judgment that such conduct is properly addressed not through civil liability, but through a host of other deterrents and punishments, including judicial oversight of criminal trials, and criminal and professional disciplinary proceedings against prosecutors. Imbler, 424 U.S. at 429. The Court has long held that, given these alternative tools, allowing criminal defendants to bring civil suits against prosecutors will produce few additional benefits and could cause serious harm._ Thanks, Camus! This is exactly what I object to. She’s arguing that the means of internal discipline _by the system of which the offender is a member of some standing_ are sufficient; & therefore _every_ attempt to bring a complaint in civil court should be dismissed as a matter of law. Her position means that the superior method of holding those accountable is forbidden; while we are asked to rely on an inferior method, which will tend not to be enforced due to office politics & personal loyalty. What she called, “few additional benefits,” is in fact accountability even if the superior & colleagues of the offender be complicit in his crime. I may be ignorant, but I’m not that stupid. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [July 6, 2010, 8:15pm UTC](https://boards.straightdope.com/t/elena-kagan-should-not-be-confirmed-as-justice/545398/14 "2010-07-06T20:15:49Z")
> [@foolsguinea](#): > > Then what I said above applies:Thanks, Camus! This is exactly what I object to. She’s arguing that the means of internal discipline _by the system of which the offender is a member of some standing_ are sufficient; & therefore _every_ attempt to bring a complaint in civil court should be dismissed as a matter of law. Her position means that the superior method of holding those accountable is forbidden; while we are asked to rely on an inferior method, which will tend not to be enforced due to office politics & personal loyalty. What she called, “few additional benefits,” is in fact accountability even if the superior & colleagues of the offender be complicit in his crime. She filed [the brief](http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/08-1065_PetitionerAmCuUSA.pdf) as Solicitor General so it is her job to protect the government prosecutors in this case. > [@](#): > > The United States Solicitor General is the individual tasked with arguing for the United States Government in front of the U.S. Supreme Court, when the government is party to a case. > > SOURCE: [http://www.wordiq.com/definition/United\_States\_Solicitor\_General](http://www.wordiq.com/definition/United_States_Solicitor_General) So yeah, she was doing her job. ---
**Author:** ![Steve\_MB](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/steve_mb/32/5339_2.png) [@Steve\_MB](https://boards.straightdope.com/u/Steve_MB)\ **Post date:** [July 7, 2010, 1:52pm UTC](https://boards.straightdope.com/t/elena-kagan-should-not-be-confirmed-as-justice/545398/15 "2010-07-07T13:52:40Z")
> [@The\_Second\_Stone](#): > > So John Adams, having defended British soldiers accused of shooting rioters, should not have been president? Irrelevant. John Adams was not asserting that agents of the state should enjoy a special immunity; he simply (and correctly) asserted that they had a right to legal defense just like anybody else. ---
**Author:** ![Steve\_MB](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/steve_mb/32/5339_2.png) [@Steve\_MB](https://boards.straightdope.com/u/Steve_MB)\ **Post date:** [July 7, 2010, 1:56pm UTC](https://boards.straightdope.com/t/elena-kagan-should-not-be-confirmed-as-justice/545398/16 "2010-07-07T13:56:18Z")
[QUOTE=Elena Kagan] If the allegations here are true, petitioners engaged in prosecutorial misconduct of an execrable sort, involving a complete breach of the public trust. But absolute immunity reflects a policy judgment that such conduct is properly addressed not through civil liability, but through a host of other deterrents and punishments, including judicial oversight of criminal trials, and criminal and professional disciplinary proceedings against prosecutors. [/QUOTE] “We of the Vulpine Committee find no grounds for further investigation in the case of the alleged hen-house raid…” ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [July 7, 2010, 2:06pm UTC](https://boards.straightdope.com/t/elena-kagan-should-not-be-confirmed-as-justice/545398/17 "2010-07-07T14:06:27Z")
> [@foolsguinea](#): > > Then what I said above applies:Thanks, Camus! This is exactly what I object to. She’s arguing that the means of internal discipline _by the system of which the offender is a member of some standing_ are sufficient; & therefore _every_ attempt to bring a complaint in civil court should be dismissed as a matter of law. Her position means that the superior method of holding those accountable is forbidden; while we are asked to rely on an inferior method, which will tend not to be enforced due to office politics & personal loyalty. What she called, “few additional benefits,” is in fact accountability even if the superior & colleagues of the offender be complicit in his crime. Your OP totally misrepresents the facts. Kagan did not argue that prosecutors should be “personally inviolate”, but that the criminal justice system was the correct venue for their comeuppance, not civil suits. Do you have a citation for the claim that prosecutors don’t get prosecuted? > [@Whack-a-Mole](#): > > She filed [the brief](http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/08-1065_PetitionerAmCuUSA.pdf) as Solicitor General so it is her job to protect the government prosecutors in this case. Strictly speaking, it _wasn’t_ her job - the defendants were state or county prosecutors, not federal ones, and I doubt it would establish precedent with regard to federal prosecutions. ---
**Author:** ![Camus](https://avatars.discourse-cdn.com/v4/letter/c/ba8739/32.png) [@Camus](https://boards.straightdope.com/u/Camus)\ **Post date:** [July 7, 2010, 2:13pm UTC](https://boards.straightdope.com/t/elena-kagan-should-not-be-confirmed-as-justice/545398/18 "2010-07-07T14:13:23Z")
> [@foolsguinea](#): > > Then what I said above applies:Thanks, Camus! This is exactly what I object to. She’s arguing that the means of internal discipline _by the system of which the offender is a member of some standing_ are sufficient; & therefore _every_ attempt to bring a complaint in civil court should be dismissed as a matter of law. Her position means that the superior method of holding those accountable is forbidden; while we are asked to rely on an inferior method, which will tend not to be enforced due to office politics & personal loyalty. What she called, “few additional benefits,” is in fact accountability even if the superior & colleagues of the offender be complicit in his crime. Except internal discipline here doesn’t just mean that a prosecutor could have their bar license suspended or be disbarred, they could face criminal charges themselves if they participated in any witness or evidence tampering. Here, the case involved a state-level prosecutor who worked for a particular district attorney’s office of an Iowa county. There are multiple prosecution agencies within a state for precisely the situation where a prosecutor is accused of criminal wrong-doing so that the same office that prosecutor worked would not have to decide whether to bring charges or not. Aside from county-level district or county attorney’s offices, which are completely independent of the other county-level district or county attorney’s offices within that state, there is also a state attorney general’s office. These other offices act as a check, since any criminal charges against a prosecutor in a particular office would be conflicted out (transferred) to one of these other agencies that have no loyalty to the prosecutor facing charges. Additionally, the local US Attorney’s office in a state also acts as a secondary check should any federal law be implicated in a state prosecutor’s alleged criminal actions. Compared to criminal charges, civil liability is a poor deterrent for this kind of practice. But, the threat of civil lawsuits from every defendant who feels wronged by a prosecutor would be a deterrent for prosecutors from simply doing their jobs. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [July 7, 2010, 3:13pm UTC](https://boards.straightdope.com/t/elena-kagan-should-not-be-confirmed-as-justice/545398/19 "2010-07-07T15:13:29Z")
Retracted due to a well timed post just following mine which is a far better answer than I provided to that poster. ---
**Author:** ![Rumor\_Watkins](https://avatars.discourse-cdn.com/v4/letter/r/d9b06d/32.png) [@Rumor\_Watkins](https://boards.straightdope.com/u/Rumor_Watkins)\ **Post date:** [July 7, 2010, 3:13pm UTC](https://boards.straightdope.com/t/elena-kagan-should-not-be-confirmed-as-justice/545398/20 "2010-07-07T15:13:32Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Strictly speaking, it _wasn’t_ her job - the defendants were state or county prosecutors, not federal ones, and I doubt it would establish precedent with regard to federal prosecutions. Strictly speaking, you’re just plain wrong. The defendants were sued under a federal law. Surprise, surprise, that the federal government would have a vested interest in ensuring that federal laws are interpreted in their favor. That would make it completely her job… to file an amicus. > [@Whack-a-Mole](#): > > Even if the ruling technically only applied to state prosecutors if SCOTUS ruled that they could be sued then I think the writing would be on the wall for which way it would go if someone decided to bring suit to make it apply to federal prosecutors. Highly unlikely - it was a §1983 suit. [Next page](https://boards.straightdope.com/t/elena-kagan-should-not-be-confirmed-as-justice/545398.md?page=2)