The case against Elena Kagan
(Salon.com) -- By Glenn Greenwald --
...Beyond the disturbing risks posed by Kagan's strange silence on most key legal questions, there are serious red flags raised by what little there is to examine in her record. I've written twice before about that record -- here (last paragraph) and here -- and won't repeat those points. Among the most disturbing aspects is her testimony during her Solicitor General confirmation hearing, where she agreed wholeheartedly with Lindsey Graham about the rightness of the core Bush/Cheney Terrorism template: namely, that the entire world is a "battlefield," that "war" is the proper legal framework for analyzing all matters relating to Terrorism, and the Government can therefore indefinitely detain anyone captured on that "battlefield" (i.e., anywhere in the world without geographical limits) who is accused (but not proven) to be an "enemy combatant."
Those views, along with her steadfast work as Solicitor General defending the Bush/Cheney approach to executive power, have caused even the farthest Right elements -- from Bill Kristol to former Bush OLC lawyer Ed Whelan -- to praise her rather lavishly. Contrast all of that with Justice Stevens' unbroken record of opposing Bush's sweeping claims of executive power every chance he got, at times even more vigorously than the rest of the Court's "liberal wing," and the risks of a Kagan nomination are self-evident.
The only other real glimpse into Kagan's judicial philosophy and views of executive power came in a June, 2001 Harvard Law Review article (.pdf), in which she defended Bill Clinton's then-unprecedented attempt to control administrative agencies by expanding a variety of tools of presidential power that were originally created by the Reagan administration (some of which Kagan helped build while working in the Clinton White House), all as a means of overcoming a GOP-controlled Congress. This view that it is the President rather than Congress with primary control over administrative agencies became known, before it was distorted by the Bush era, as the theory of the "unitary executive." I don't want to over-simplify this issue or draw too much importance from it; what Kagan was defending back then was many universes away from what Bush/Cheney ended up doing, and her defense of Clinton's theories of administrative power was nuanced, complex and explicitly cognizant of the Constitutional questions they might raise.
Still, the questions she was addressing were the crux of the debate back then over the proper limits of executive authority, and the view she advocated was clearly one that advocated far more executive power than had been previously accepted. Kagan's 2001 law review article is what led to this from The Boston Globe when Kagan was nominated for Solicitor General:
"She is certainly a fan of presidential power," said William F. West, a professor who specializes in federal administration at the Bush School of Government and Public Service at Texas A&M.
Similarly -- and very revealingly -- even the moderate Neal Katyal, now Kagan's Deputy, emphatically criticized Kagan's theories in that law review article as executive overreach and even linked them to the Bush/Cheney executive power seizures. Katyal wrote in a June, 2006 article in The Yale Law Journal (.pdf; emphasis added):
"Such claims of executive power are not limited to the current administration, nor are they limited to politicians. Take, for example, Dean Elena Kagan's rich celebration of presidential administration. Kagan, herself a former political appointee, lauded the President's ability to trump bureaucracy. Anticipating the claims of the current administration, Kagan argued that the President's ability to overrule bureaucrats "energize[s] regulatory policy" because only "the President has the ability to effect comprehensive, coherent change in administrative policymaking" . . . .
"Assaulted by political forces, the modern agency is a stew of presidential loyalists and relatively powerless career officials. To this political assault comes an academic one as well, with luminaries such as Elena Kagan celebrating presidential administration an unitary executivists explaining why such theories are part of our constitutional design. This vision may work in eras of divided government, but it fails to control power the rest of the time."
As Katyal noted, Kagan relied upon the warning from Alexander Hamilton about a "feeble executive" that was beloved by Bush/Cheney legal theorists, and she hailed "strong, executive vigor." On the legal spectrum, Kagan clearly sits on the end of strong assertions of executive authority -- perhaps on the far end, almost certainly much further than where Stevens falls. It's perhaps unsurprising that a President -- such as Barack Obama -- would want someone on the Supreme Court who is quite deferential to executive authority. But given that so many of the most important legal and Constitutional disputes center on the proper limits of executive power (including ones that remain to be decided from the Bush era), and that Kagan and her rulings will likely long outlast an Obama presidency (i.e., any pro-executive-power decisions she issues will apply to future George Bushes and Dick Cheneys), shouldn't these pro-executive-power views, by themselves, prompt serious reservations (if not outright opposition) among progressives?...
And even on the issues where she has been impressive -- such as her refusal to allow military recruiters to recruit at Harvard Law School due to their anti-gay discrimination -- her record is ultimately rather muddled. After preening around for years justifying her ban on military recruiters by decrying the military's ban on gays as "a profound wrong -- a moral injustice of the first order," she quickly reversed that policy and allowed military recruiters onto campus after the Federal Government threatened to withhold several hundred million dollars in funds to Harvard (out of a $60 billion endowment)...MORE...LINK