July 12, 2010
Kagan Commits Perjury
Senator Tom Coburn, who completed his legal studies at Oklahoma State University Medical School in 1983, knows as much about the law as a hog knows about Sunday. Nonetheless—
Sen. Tom Coburn (R., Okla.) asked if Ms. Kagan agreed with Critical Legal Studies, a left-leaning movement that flourished at Harvard Law School in the 1980s. CLS believed the U.S. legal system abetted traditional social and economic hierarchies, perpetuating an inequitable distribution of wealth and power.
“No,” Ms. Kagan wrote. “I do not agree with any of the ways of understanding law and the legal system that are described above.”
Likewise, Mr. Coburn asked if she “ascribed” to Legal Realism, an antecedent of critical studies developed in the 1920s by such figures as Jerome Frank, a federal appeals judge and former Securities and Exchange Commission chairman. Legal Realism rejected the 19th century view that law was akin to a science with unchanging principles that were discovered over time, and instead contended that law was a human creation that reflected human biases and imperfections.
“No,” Ms. Kagan replied.
The answer showed her to be either a liar or a fool. Liar is more probable. Her job at that moment was not to tell the truth but to get past the Senate and onto the Supreme Court. Chief Justice John G. Roberts had earlier showed her how the thing was done when he babbled on, at his own confirmation hearings, about baseball umpires and his undying fealty to the sanctity of legal precedent.
To anyone who is, unlike Coburn, actually interested in legal realism, I recommend reading not only Jerome Frank, but also Thurman W. Arnold, James Harvey Robinson, John T. Noonan, Jr., and Fred Rodell. Arnold, the most entertaining of these, is pictured below.
Posted by Jerome Doolittle at July 12, 2010 10:17 AM
Without a doubt, this is true. We don't really have a justice system in many parts of the country. We have fiefdoms. This has been part of the law for many years, but in the last 30 years our legal system has not become one of laws, but one of men and women willing to bend the law to help out the most powerful rather than the least powerful. This could be an ominous sign for our future as this was the same type of legal system molded by the Nazi party in the space of a few short years. Scott Horton has been writing relentlessly about the problems within our Federal system of Justice and I have personally seen the least fortunate taken advantage of on more than one occasion. I have known of lawyers being told to "plead client A gulity or I will hold it against all the rest of your clients". I suppose I committed an ethics violation in not reporting this kind of transgression and quite frankly, though I remember who the lawyer who was put in this position, I can't remember who his clients were. The person I speak of who made this threat is no longer a judge but is retired but his proclivity to engage in exactly this kind of behavior was known by all within the local legal community and all were afraid of his unfettered power to not only turn and twist things so that it appeared such things never happened, but his court reporter was also often instructed to "don't take this down" and many, many lawyers were also aware that this went on. I finally left the legal profession determined to not enter the halls of justice until the problem was cleared up. Unfortunately as to that very locality it might very well have, however the rest of the nation seems to be going down the path of the rural Southern justice system as II practiced in some 25 years ago. And it seems to be getting worse every day.
Although I do realize that J. Edgar Hoover held such power over the whole of Congress for many years so my suspicions about things getting worse may just be based on flawed observations.
However the fact that we have descended into a state in which torture is not only tolerated, but advocated openly as a proper system of justice convinces me that the future may be very dark indeed for our country.
President Obama has disappointed me greatly in his failure to remedy theee horrendous flaws or even to fight to make things better. Unless there is some plan of which I am not aware of to radically reform our system of justice.
No civilization in history has incarcerated more of its people than the United States currently does. Stalin and Hitler may have been more brutal, but even the sheer numbers sent to the gulags or the concentration camps were less, or so it appears to me.
But maybe there is hope. Read Sasha Abramsky's article from the July 5 edition of the Nation.
She speaks to the criminal justice system, which has the most major failings, but only the Trial Lawyers and groups like the ACLU keep our civil system from becoming totally corporate owned.
Hearing from these authors from just a few short decades ago seems like ancient history. Perhaps the best hope we have is that like religion, at times nations can go through revival periods in which the pendulum swings in the other direction. But right now it has to swing a long way and very hard to overcome the stacked judiciary that we now have in place. Perhaps others can offer a more encouraging message than I can.
Let me also add one other lawyer to the list. Although not a major figure in the law, Chris Dodd's father's letters to his wife contain many ideas that sound strange and odd to those used to practicing or reading the law today. However, as a major prosecutor at the Nuremburg War Crimes Trials one cannot help but compare his scorn for those he prosecuted and the behavior they engaged in. And compare it to how lightly those in high places within our own country seem to cavalierly regard almost similar conduct within our own country. Nuremburg was not only about mass murder, it was about the ways and means that men who governed behaved and failed to stop the murderous Kafkaesque behavior going on around them. I recommend Dodd's book, which consists of letters to Dodd's mother most highly. Although not directly related to the issue you speak of, it portrays how honorable men conducted themselves in prosecuting murderers who made war solely for the sake of profit, murder and conquest. What was the last figure on the number of innocent Iraqui's killed in the Bush/Cheney escapade? 1.3 million I believe.
Our legal system is corrupt beyond repair, This is one thing I know without a doubt.