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Hollywood Nervous About Kagan's Fair Use Views
Of the many commentaries and analyses springing up about Obama's Supreme Court nominee, this community might be most interested in one from the Hollywood Reporter. Reader Hugh Pickens notes that Hollywood may have reason to be nervous about the nomination of Elena Kagan to be the next US Supreme Court justice. "As dean of Harvard Law School from 2003 to 2009, Kagan was instrumental in beefing up the school's Berkman Center for Internet & Society by recruiting Lawrence Lessig and others who take a strongly liberal position on fair use in copyright disputes. And Kagan got an opportunity to showcase her feelings on intellectual property when the US Supreme Court asked her, as US Solicitor General, to weigh in on the big Cablevision case. 'After Cablevision announced in 2006 that it would allow subscribers to store TV programs on the cable operator's computer servers instead of on a hard-top box, Hollywood studios went nuts, predicting that the days of licensing on-demand content would be over,' writes Gardner. Kagan's brief compared remote-storage DVRs to VCRs (PDF), brought up the Sony/Betamax case, and lightly slapped Cablevision on the wrist for not making fair use a bigger issue. 'It sounds to us like Kagan would love the Court to determine when customers have a fair-use right to copy, which should cheer those on the copy-left at the EFF, and worry many in the entertainment industry.' On the minus side, Kagan has surrounded herself with entertainment industry advocates in the Justice Department."
A story on the Supreme Court appointment that's actually News for Nerds rather than Republocrat propaganda!
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Except that the justices who have moved most to the Left have been the ones appointed by Republicans.
John Paul Stevens is an example of that. He was appointed by Gerald Ford and sold as a conservative. He is arguably the furthest Left of any Justice currently sitting on the Court.
But maybe you have a point. Recent Republican presidents have appointed justices so far to the Right that there's really no place for them to go but Left.
Robert Bork would almost certainly be considered not conservative enough by today's Republicans because he took the 2nd Amendment literally and believed it only applied to "well-regulated militias" and did not give everybody the right to pack heat.
You are welcome on my lawn.
She also argued that prosecutors who deliberately manufacture evidence to convict innocent people should not be civilly liable for their actions.
Before you use her participation in support of the Pottawattamie prosecutors to extrapolate her entire character, I recommend reading the Pottawattamie County v. McGhee article over at SCOTUSWiki. Among other things, you'll find out that even the McGhee and Harrington side of the case agrees that prosecutors "enjoy immunity when they knowingly introduce false testimony during trial" based on the 1976 SCOTUS decision in Imbler v. Pachtman. All the legal wrangling was over drawing lines across contiguous situations, like whether or not that immunity extends to pre-trial conditions. The central idea of immunity for prosecutors during trial apparently wasn't even really being questioned, because much of the lawyering world apparently believes that if you open prosecutors to liability, it'll have a "chilling effect" on their ability to pursue justice even in situations where the defendant is guilty as sin because of the threat of being buried under lawsuits.
Now, from an ethical and liberty-focused perspective, I completely agree that a lot of this is ridiculous. I think that fabricating evidence is flat-out simply beyond the job description of any state officer, and so by definition, whether or not it happened pre-trial or during the trial, it's outside of official prosecutorial duties and can and should incur criminal and civil liability. But there are beings who walk the earth who see court cases very differently than a normal citizen does, who don't operate directly on matters of ethics and policy and justice and liberty, but instead on the law as the instrument which serves those matters, and who apparently see a prosecutors role as such an important one in actually pursuing justice that it's deserving of considerable latitude. I disagree and I think there's a cultural problem here that needs to be addressed by legal means: we're apparently going to need a law stating that fabrication of evidence is explicitly outside any public duty and that no immunity of any kind applies.
I'm unimpressed by Kagan's advocacy, and think everybody should contact their Senator -- particularly if they've got one that's on the judiciary committee -- if for no other reason to highlight this issue, which hasn't received anywhere near its due attention, but flogging Kagan in particular for it probably isn't going to address a systemic problem.
Tweet, tweet.
I don't think that's a good excuse because it removes all personal responsibility. Compare with "Bush didn't really think we should invade Iraq, but he only did so because it was his job." Or more recently, "Obama really wanted to close Gitmo, but he kept it open because it was his job." I don't think either of those statements are more outlandish than the executive's top lawyer arguing that speech is too free.
She had a boss. Her boss sets the tone of what he wants and why. Also, she was supposed to reflect the interests of the US government as best she could (which is broken in itself, as she should represent the US people, but that's not how it works) and did so.
The president doesn't bow to the will of the people. He is to do what's best regardless of what others think. He can't be fired. He answers to no one (assuming no laws are broken). And for him to do something "because it's his job" stops when the oath is taken. No one could ever argue it was Bush's job to invade. If Congress declared war (and they didn't) then one could argue that it was his job. But there was no declared war, so he had no job related duty to invade.
There's a time and a place to go along with work duties you disagree with, but there's also a time to stand up and say "this is wrong and I can't do this in good conscience." In my opinion, lobbying the Supreme Court for a position you disagree with is poor form if you eventually want people to trust that you don't agree with that position. It's bad morally, and it's bad politically.
That's why it's so hard for senators to go on to president. They made fun of Kerry for "I actually did vote for the $87 billion before I voted against it." But that's exactly what happens. For political, personal, or financial reasons, people change their minds. The bills get a rider or are changed such that you were on the fence yes, then on the fence no, so you flip-flopped. That's politics. The Senate is much more an old-boys network where votes change that way (smaller and with more longevity than the House). Lawyering is the same way. If you ever defend a guilty person (and there isn't a defense lawyer that doesn't) you are arguing to release someone who is guilty. That takes a dedication to the system above the dedication to the truth or justice. That's how our system works. To fault someone because they do their duty to the system as required seems absurd. If she didn't take the position that's "wrong" and run with it, she'd have been fired. And taking the position she did, even if she doesn't agree with it, is still considered ethical and the proper thing to do. From your statements, you'd exclude all public defenders, all defense lawyers, and almost all prosecutors from ever serving just because they did their job as expected and required.
It sounds like you either hate the adversarial judicial system we have, and are taking it out on her because she's in the public eye right now, or that you don't like her for some unrelated reason and are using this as an excuse when it applies to almost every lawyer universally and you aren't applying it to them.
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