Inaction on Siegelman Case Helps Earn a Thumbs Down for Kagan

Elena Kagan's nomination for a seat on the U.S. Supreme Court should be rejected because of her support for enhanced executive authority and her weak record on civil rights, according to a nonpartisan research organization in Washington, D.C.

The Justice Integrity Project (JIP) opposes Kagan largely because she has been part of a leadership team in the Obama Department of Justice that has failed to address constitutional abuses by federal prosecutors and judges during the George W. Bush administration.

How does JIP reach this conclusion? By focusing heavily on the prosecution of former Alabama Governor Don Siegelman. Kagan's seemingly unprincipled stance on that case looks even worse in light of the U.S. Supreme Court's decision yesterday to vacate the judgment against Siegelman and remand the case to an appellate court for further review.

Kagan's confirmation hearings began Monday in the U.S. Senate, and she is expected to be confirmed. But according to JIP, citizens who care about constitutional principles should be concerned about what Kagan might bring to the nation's high court:

“Our nation faces unprecedented threats, with constitutional issues too often decided by a Supreme Court on a partisan, result-oriented basis,” said JIP Executive Director Andrew Kreig. “We need reform. This nominee’s track record on key civil rights issues does not deserve public trust or confirmation─especially given her direct involvement in several notorious cases while representing DOJ as solicitor general.”

Kreig points specifically to the case of Siegelman and codefendant Richard Scrushy. As solicitor general, Kagan filed a brief urging the Supreme Court not to hear an appeal in the case:

JIP argues that 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 Lottery 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.

The Siegelman case gets even uglier when you look at it closely, Kreig says--and that's something Kagan and others in the Obama administration have been unwilling to do:

More generally, an in-depth JIP investigation has confirmed that the two defendants were systematically framed, with a cover-up extending to the current administration. Here’s what JIP’s executive director has reported in articles published over the past 13 months:

Authorities headquartered their all-out attack on Siegelman, Alabama’s leading Democrat, from the secure location of an Air Force base. 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 an Alabama factory. 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.

Of particular concern to JIP is Kagan's apparent willingness to overlook blatant misconduct by federal judges, such as Mark Fuller of Siegelman-case fame:

As described more fully by JIP reports, 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 and through the justice system. 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.

In an article yesterday at Huffington Post, Kreig noted that the Supreme Court rejected the arguments Kagan had made as solicitor general on the Siegelman appeal. And he decried a culture in Washington, D.C., fostered by members of both parties, that looks the other way on matters of fundamental justice:

Neither political party has much stomach to poke into the web of military and financial relations that some of us have reported as key factors prompting the prosecution. The judge's company Doss Aviation, for example, has a remarkably important role in training Air Force pilots and refueling Air Force planes. As amplified in my group's statement against the Kagan nomination yesterday, there's far more to that part of the story than most want to explore publicly, especially in wartime and especially given the business relationships involved.

To encourage reform, JIP has launched a special section on its Web site, featuring critics of Kagan, the confirmation process, and the burgeoning executive branch. Kreig points to ongoing events in the Gulf of Mexico as an example of issues likely to face Kagan:

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, the courts must address mass suffering from BP’s Gulf oil volcano, too often minimized as a “spill.”

Kreig is alarmed by the arrogance he sees from current members of the Supreme Court. And he notes that oversight of justices usually ends with 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.

Is Kagan up to changing that ugly culture? Kreig doesn't think so:

“Kagan’s Harvard, Obama and Clinton credentials would probably lead to easy confirmation during normal times,” Kreig concluded, "with her longtime advisory services for Goldman Sachs simply another feather in her cap."

“But many people are now scared, or angry at Washington and at crony capitalists alike," he said. "People want─and deserve─a reliable advocate on the Court for our basic freedoms.”