I appeared on The Rachel Maddow Show last night to articulate the case against Elena Kagan, and was then followed by Kagan friend and defender Larry Lessig of Harvard Law School, who spent five minutes (in my absence) trying to discredit me and what I said (video of the two segments is below). Although I would have preferred an opportunity to address the accusations Lessig was making about me through an interactive exchange, I was glad Rachel presented both sides of the debate. But there is one serious accusation that Lessig spouted that is so blatantly and inexcusably false that I feel compelled to highlight it, particularly since I was unable to respond last night. This is what Lessig said when referencing "this work had written when she wrote this piece for the Harvard Law Review" in 2001:
This is another area where Glenn has just flatly misstated the case. In his piece on Democracy Now on April 13, he said that in that article, she talked about the power of the President to indefinitely detain anyone around the world.
Now, that article was written before George Bush, before 9/11, and before George Bush articulated anything about this power. It has nothing to do with the power of the President to detain anybody. The power of the unitary executive that George Bush articulated -- this kind of uber power of unitary executive -- was nowhere even hinted at in Elena's article. Yet Glenn has repeatedly asserted that she is George Bush, and that is just flatly wrong.
If I were listening to that and had no familiarity with what I had written, I'd have thought: Wow, that Glenn Greenwald is either completely dishonest or a total idiot; how can he go around claiming that Kagan's 2001 law review article defended Bush detention policies when it was written before those policies were even implemented and had nothing to do with those policies? People questioning the Kagan pick obviously have no credibility. And that, of course, is exactly the impression Lessig's accusation was intended to create.
Except it's totally false. I've never said, believed or even hinted at any such thing -- let alone "repeatedly asserted" it. Lessig just made that up out of thin air and, knowing nobody was there to dispute it, unleashed it on national television. Kagan's comments embracing indefinite detention powers came in her 2008 Solicitor General confirmation hearing when answering Lindsey Graham: please see Law Professor Jonathan Turley's superb analysis on that exchange. Her position on detention was expressed there, not in her 2001 Law Review article, and -- contrary to Lessig' inexcusably false accusations -- I never, ever claimed otherwise. In fact, here is what I wrote about her 2001 law review article in "The Case Against Elena Kagan":
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.
...
http://www.salon.com/news/opinion/glenn_greenwald/2010/05/11/lessig/index.html
Printer-friendly format
Email this thread to a friend
Bookmark this thread
(1000+ posts)
Send PM |
Profile |
Ignore
