Predictably, the right reacted to Solicitor General Elena Kagan’s nomination to the Supreme Court by competing to see who can say the most unhinged thing about her. (So far, the RNC is blowing away the competition by
attacking Kagan for her opposition to slavery.) Yet, while conservatives have engaged in characteristic hyperbole, several voices on the left have raised
legitimate concerns that Kagan will not go far enough in challenging the Court’s right flank. In a
lengthy piece, Glenn Greenwald lays out many of these left-ward concerns, noting that her career as a White House official, Harvard Law School Dean and as the United States’ top litigator has not led to her produce a great deal of paper explaining her views on key issues:
(G)iven that there are so many excellent candidates who have a long, clear commitment to a progressive judicial philosophy, why would Obama possibly select someone who — at best — is a huge question mark . . . ? I believe Kagan’s absolute silence over the past decade on the most intense Constitutional controversies speaks very poorly of her. Many progressives argued (and I certainly agree) that the Bush/Cheney governing template was not merely wrong, but a grave threat to our political system and the rule of law. It’s not hyperbole to say that it spawned a profound Constitutional crisis.
Glenn is right to raise this issue. Simply put, the Bush Administration’s views on executive power are so radical — so inconsistent with the fact that America is not ruled by a single, all-powerful monarch — that any person who holds them should be disqualified from any service on the federal bench. But Glenn is wrong to claim that Kagan was silent in the face of “radical theories of executive power the Bush administration invoked to commit grave crimes and other abuses.” To the contrary, Kagan
spoke out in the clearest possible terms against an amendment offered by Senator Lindsay Graham (R-SC) which would have stripped detainees of any meaningful access to judicial process:
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A vaguely-related issue is Kagan’s view of the White House’s role within the Executive Branch. In her seminal article on “Presidential Administration,” General Kagan touts the Clinton White House’s
supervision of executive branch agencies to ensure that those agencies achieved the “progressive goals” President Clinton was elected to achieve. There is a healthy debate in the progressive legal community regarding how aggressive a president should be in supervising the agencies, but it is also important to note what Kagan’s article is not about. Kagan’s article is about which part of the Executive Branch–the White House or the agencies–should take the lead in setting policy. It does not call for the kind of presidential seizure of power from the legislative and judicial branches that was so common under George W. Bush.
Kagan is also likely to be a much-needed voice against Chief Justice Roberts and Justice Alito’s crusade to
immunize wealthy corporations from accountability under the law. As an adviser to President Bill Clinton, Kagan spearheaded bipartisan legislation to prevent tobacco companies from marketing their products to children — only to watch the court’s conservatives
apply an implausible reading of the law and hold tobacco companies immune from such regulation. So Kagan knows what it is like to see years of effort to protect the American people’s heath and safety destroyed by a Supreme Court more concerned with protecting corporations than with upholding the law. Kagan spent much of her career crafting laws intended to protect ordinary Americans–so she understands the terrible consequences of ignoring the law to suit a narrow interest group’s agenda.
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