The Elena Kagan Reader
by Charles Lemos, Sun May 09, 2010 at 11:36:48 PM EDT
With the President presumably set to nominate Elena Kagan, the current Solicitor General and former Dean of Harvard Law School, to Supreme Court here are a number of articles, negative as well as positive or neutral, that I've read over the past few days.
Glenn Greenwald in Salon argues against the nomination of Elena Kagan in his post entitled The Case against Elena Kagan. His key observation:
The prospect that Stevens will be replaced by Elena Kagan has led to the growing perception that Barack Obama will actually take a Supreme Court dominated by Justices Scalia (Reagan), Thomas (Bush 41), Roberts (Bush 43), Alito (Bush 43) and Kennedy (Reagan) and move it further to the Right. Joe Lieberman went on Fox News this weekend to celebrate the prospect that "President Obama may nominate someone in fact who makes the Court slightly less liberal," while The Washington Post's Ruth Marcus predicted: "The court that convenes on the first Monday in October is apt to be more conservative than the one we have now." Last Friday, I made the same argument: that replacing Stevens with Kagan risks moving the Court to the Right, perhaps substantially to the Right (by "the Right," I mean: closer to the Bush/Cheney vision of Government and the Thomas/Scalia approach to executive power and law).
University of Colorado law professor Paul Campos writing in the New Republic bemoans that Kagan is essentially a blank slate whose legal views remain largely unknown and should the President nominate her he would be "taking a very big risk."
Another critical piece is by Harvey Silvergate and Kyle Smeallie in the alternative news weekly The Boston Phoenix who find that "Kagan’s record indicates an ideological departure from Justice Stevens, who authored watershed detainee-rights opinions and organized the five-justice majorities that struck down other Bush administration power grab." They examine Kagan's tenure as Solicitor General and conclude:
Ultimately, Kagan leaves us with more questions than answers. That fact alone should give pause to liberals and civil libertarians, wary after eight years of the Bush administration’s detaining suspects without trial, wiretapping citizens without warrant, and interrogating detainees without regard to international-war conventions. And the unavoidable reality is that Obama has quietly — and sometimes not so quietly — continued some of Bush’s most controversial assertions of executive power. Earlier this month, the Obama administration authorized the targeted killing of a US citizen — entirely without due process or, it appears, any process either legislative or judicial — who is thought to be assisting terrorists in Yemen. President Bush never invoked such authority, the New York Times reported.
Whether life begins at conception, or whether gay citizens are entitled to the equal protection of the law — issues on which Kagan’s views are clear and well-known — will likely be the focus of scrutiny in the event Kagan is nominated. It’s too bad that this dog-and-pony show will detract from the real question that needs to be asked — namely, whether Kagan thinks executive authority trumps liberty and individual rights when they conflict in either the national security or law-enforcement arenas.
More supportive is Duke Law professor Walter Dellinger who wrote in a rebuttal to Greenwald's complaints arguing that Kagan's "views are fundamentally progressive." Still, one of Dellinger's readers flatly accused him of being misleading posting a long rebuttal. It should be noted that Dellinger and Kagan worked together in the Clinton White House. Campos, too, found Dellinger's evidence for Kagan's progressive values to be scant:
The sum total of Dellinger’s evidence consists of the “Presidential Administration” article and a 2007 commencement speech in which Kagan criticized John Yoo’s torture memos. Given the uncontroversial nature of the Harvard Law Review article and the fact that the torture memos have been repudiated by the Bush administration’s own lawyers, this is pretty thin evidence for Kagan’s supposedly “progressive” inclinations.
In an article in the New York Times that covered several names under consideration, Charlie Savage had this to say about Elena Kagan:
Ms. Kagan also has a mixed record on executive powers, but one that suggests she might generally be more sympathetic toward the White House than Justice Stevens.
She worked as a White House lawyer during the Clinton administration, when it was facing off against a hostile Congress and seeking ways to act unilaterally. That experience shaped her major scholarly work, a 2001 law review article in which she explained and defended efforts by the Clinton White House to impose greater centralized control over executive agencies.
In the article, Ms. Kagan argued that even if Congress has given the authority to make a regulatory decision to an agency, the president has the power to control that decision unless a statute explicitly forbids him from interfering. She wrote that it was “ironic” that “self-professed conservatives” were associated with calling for stronger executive power in recent decades because a more robust presidency could achieve “progressive goals.”
Still, her defenders note that she also wrote, “If Congress, in a particular statute, has stated its intent with respect to presidential involvement, then that is the end of the matter.” And in 2007, she gave a speech celebrating the actions of Bush lawyers who battled the White House over the legality of the warrantless surveillance program.
That view appears to put Ms. Kagan in the camp that criticized the Bush administration for arguing that the president could bypass laws, but also left the door open to sweeping executive authorities as long as Congress can be plausibly said to have signed off on them.
Indeed, after Mr. Obama selected her to be his solicitor general, she publicly embraced an expansive interpretation of the Congressional authorization to use military force against Al Qaeda. Ms. Kagan also took a leading role on a legal team that has sought to suppress lawsuits using the state secrets privilege and fought a ruling granting habeas corpus rights to some detainees in Afghanistan.
Beyond the debate over Kagan's view on executive power and her scant publishing record, other objections to her nomination center on her hiring practices while she was the Dean of Harvard Law School. Writing in Salon, a joint article by Guy-Uriel Charles of Duke Law School; Anupam Chander of the University of California-Davis School of Law; Luis Fuentes-Rohwer of Indiana University's School of Law; and Angela Onwuachi-Willig of the University of Iowa College of Law find that based on the faculty hired during tenure "raises a significant question about her willingness to go to bat for racial and gender equality." Of 43 new hires, only four were minorities and just nine were women but Harvard officials defend Kagan noting that the hires do not reflect the whole story because more offers were made than were accepted. Others note that she transformed Harvard Law with a more ideologically diverse faculty and tout her consensus building abilities.
Tom Goldstein of SCOTUS blog has numerous posts on Kagan but I found this summary quite illuminating:
Kagan is uniformly regarded as extremely smart, having risen to two of the most prestigious positions in all of law: dean of Harvard Law School and Solicitor General.
In government and academia, she has shown a special capacity to bring together people with deeply held, conflicting views. On a closely divided Supreme Court, that is an especially important skill.
Conservatives who she has dealt with respectfully (for example, Charles Fried and former Solicitors General to Republican Presidents) will likely come forward to rebut the claim that she is an extreme liberal.
She would also be only the fourth woman named to the Court in history, and President Obama would have named two. At age 50, she may serve for a quarter century or more, which would likely make her the President’s longest lasting legacy.
As with John Roberts, her service in a previous presidential Administration exposed her to a number of decisionmakers, who have confidence in her approach to legal questions.
The fact that she lacks a significant paper trail means that there is little basis on which to launch attacks against her, and no risk of a bruising Senate fight, much less a filibuster.
And finally, one point is often overlooked: Kagan had some experience on Capitol Hill and significant experience in the Executive Branch, not only as an attorney in the White House counsel’s office, but also as an important official dealing with domestic affairs. She has thus worked in the process of governing and does not merely come from what has recently been criticized (unfairly, in my view) as the “judicial monastery.”
SCOTUS Blog also provides links to Kagan's academic papers some of which are available in pdf form while others require a subscription to Lexis or Westlaw. And lastly, the New York Times provides an overview of what is no matter which way you slice it a compelling life story marked by achievement.
[UPDATE] Over at the Huffington Post, Harvard Law Professor Lawrence Lessig argues the case for confirming Elena Kagan. The crux of his argument:
For the core of Kagan's experience over the past two decades has been all about moving people of different beliefs to the position she believes is correct. Not by compromise, or caving, but by insight and strength. I've seen her flip the other side. Those were the reports of her work inside the Clinton administration (Clinton's nickname for her: "Judge"). Many describe her success at remaking a radically diverse law school (the Harvard I've returned to is not the Harvard I left). I've seen her earn the respect of people who disagree with her, and not by either running to a corner to pontificate, or by caving on every important issue. Kagan can see a fight; if she can see a path through that fight, keeping her position in tact, she can execute on it. And even when a victory is obviously not in the cards, she will engage the other side boldly. It is extremely rare for a Solicitor General to tell a justice he is wrong (as Kagan did to Scalia in the argument in Citizens United). But for those of us who know her, that flash of directness and courage was perfectly in character for this woman who knows what she wants, and how to get it.
In a line: She marries the brilliance and strength of the very best Justices, a practical skill not of compromise but argument, and deep experience inside the executive branch. It is a broad base of experience, producing an understanding of what is possible, and skill to produce what is right.
That argument supports a claim made by Josh Gerstein over at Politico noting that White House aides also have signaled that the President believes Kagan could provide a forceful, effective counterweight to Chief Justice John Roberts and Justice Antonin Scalia, and perhaps even be the bridge to bring Justice Anthony Kennedy onto the liberal side in narrow 5-4 decisions.