President Obama's Disingenuous Attack on Outsourcing

[AnotherMcIntosh]

174. You are mistaken. Obama did not appoint either Scalia or Thomas.

He did, however, appoint Elena Kagan.

With respect to criminal cases, do you believe that she is a liberal or a progessive?

Strangely enough, some well respected attorneys and legal scholars do not. Please see, for example, Charles Weisselberg's analysis entitled Elena Kagan and the Death of Miranda.
http://www.huffingtonpost.com/charles-weisselberg/elena-kagan-and-the-death_b_596447.html

As early as 2010, he wrote:

On June 1, the U.S. Supreme Court finally dealt Miranda a death blow. Elena Kagan, Obama's nominee for the Supreme Court, was complicit in Miranda's demise. Her participation may give some insight into her views on the rights of criminal defendants, and her understanding of how the law affects ordinary people.

In Berghuis v. Thompkins, the decision announced today, the Court ruled 5-4 that a suspect has to speak in order to assert the right to remain silent. Van Chester Thompkins was given his Miranda warnings and remained quiet for almost 3 hours. During that time, officers continued the interrogation and Thompkins eventually made an admission. A federal court found that he had asserted his right to remain silent by actually remaining silent, and that officers should have ended the questioning. The Supreme Court reversed.

The majority said that if officers give Miranda warnings to a suspect, they may begin questioning and continue to question unless the person clearly and unambiguously says he wants to remain silent or wants a lawyer. Police do not have to expressly ask a suspect to waive their rights. If the person shows incredible stamina -- like Thompkins -- and manages to remain silent through hours of intense interrogation, he will have "waived" his rights if he eventually caves in to pressure.

And the Court has placed a substantial burden on suspects to invoke their rights with great precision. A number of lower courts applying the clear and unambiguous standard have been quite demanding, finding that statements such as "I think it's about time for me to stop talking" and "I think I would like to talk to a lawyer" are not clear invocations of the right to remain silent or the right to counsel.

In contrast to the majority that formally transformed Miranda into a rule protecting the police instead of protecting the accused, Justice Sotomayor (joined by retiring Justice John Paul Stevens and Justices Breyer and Ginsburg) wrote a dissent which explains how the majority opinion rewrote Miranda. It's worth reading.

As also noted by Charles Weisselberg, Miranda's safeguards for suspects are now mostly symbolic and rendered meaningless. "So long as officers give warnings, their interrogation practices will be largely immune from any legal challenge. As the justices have noted in other cases, if warnings are given and a statement is obtained, it is very difficult for a defendant to contend that his admissions were coerced."

You think that Justice Kagan is a liberal or progressive with respect to criminal issues?


Also as noted in Harvard Law & Policy Review, Death by a Thousand Cuts
http://hlpronline.com/2010/09/death-by-a-thousand-cuts-miranda-and-the-supreme-court%E2%80%99s-2009-10-term/

In a trilogy of decisions from that term, (2) the Court eviscerated Miranda safeguards, reversed state and federal decisions finding violations of Miranda, and, in the view of dissenting justices, “turn(ed) Miranda upside down.”(3) As an attorney for the National Association of Criminal Defense Lawyers lamented, “(a)t this rate, what’s left of Miranda will be only what we see on TV.”