Elena Kagan: A Status-Quo Selection

Elena Kagan: A Status-Quo Selection Two big stories that came out of this last weekend have led some fear that they are symptomatic of an administration which hopes to push the boundaries of Executive power. First came Attorney General Eric Holder’s declaration on Sunday that the Administration is supportive of efforts to limit the Miranda rights of American citizens accused in terrorism cases. The New York Times on Monday:

The Obama administration said Sunday it would seek a law allowing investigators to interrogate terrorism suspects without informing them of their rights, as Attorney General Eric H. Holder Jr. flatly asserted that the defendant in the Times Square bombing attempt was trained by the Taliban in Pakistan.

Mr. Holder proposed carving out a broad new exception to the Miranda rights established in a landmark 1966 Supreme Court ruling.

The second story is, obviously, the nomination of Solicitor General Elana Kagan to the United States Supreme Court. In her role as Solicitor General she has vigorously defended the Obama administration’s assertions of Executive power in front of the Supreme Court. Coming on the heels of Holder’s interview on Sunday civil libertarians are on edge. But should we view her work as Solicitor General as that of an advocate representing a client and not as her own beliefs as some have argued? Or should we look to the not-so-distant past where Kagan has voiced her some more specific views on these issues?

The ever vigilant Glenn Greenwald contrasts the Kagan selection with Diane Wood, a more clearly liberal potential nominee than Kagan:

It’s even less surprising that Obama would not want to choose someone like Diane Wood. If you were Barack Obama, would you want someone on the Supreme Court who has bravely insisted on the need for Constitutional limits on executive authority, resolutely condemned the use of Terrorism fear-mongering for greater government power, explicitly argued against military commissions and indefinite detention, repeatedly applied the progressive approach to interpreting the Constitution on a wide array of issues, insisted upon the need for robust transparency and checks and balances, and demonstrated a willingness to defy institutional orthodoxies even when doing so is unpopular? Of course you wouldn’t. Why would you want someone on the Court who has expressed serious Constitutional and legal doubts about your core policies? Do you think that an administration that just yesterday announced it wants legislation to dilute Miranda rights in the name of Scary Terrorists — and has seized the power to assassinate American citizens with no due process — wants someone like Diane Wood on the Supreme Court?

But all is not lost civil libertarian’s! As usual the record, thin as it may be, is more complicated than the basic narrative that some quickly seized upon. NPR reported on Monday:

In a 2005 letter to Sen. Patrick Leahy (D-VT), Kagan and three other deans of major American law schools wrote to oppose legislation proposed by Sen. Lindsey Graham (R-SC) to strip the courts of the power to review the detention practices, treatment and adjudications of guilt and punishment for detainees at Guantanamo Bay, Cuba.

“To put this most pointedly,” the letter said, “were the Graham amendment to become law, a person suspected of being a member of al-Qaeda could be arrested, transferred to Guantanamo, detained indefinitely … subjected to inhumane treatment, tried before a military commission and sentenced to death without any express authorization from Congress and without review by any independent federal court. The American form of government was established precisely to prevent this kind of unreviewable exercise of power over the lives of individuals.

“When dictatorships have passed” similar laws, said the deans, “our government has rightly challenged such acts as fundamentally lawless. The same standard should apply to our own government.”

That is seriously strident language, particularly coming from someone who is now alleged to be little more than a Obama’s John Yoo. Adam Serwer from The American Prospect:

There are only four signatories, so it’s not as though Kagan would have gone unnoticed in a sea of other names. Stanford Law School Dean Larry Kramer, Dean of the Georgetown University Law Center T. Alexander Aleinikoff, and then-Yale Law School Dean Harold Koh

Kagan signing onto this criticism of the Graham amendment suggests far more skepticism of executive power in the realm of foreign policy than I initially assumed — it puts her, in 2005 and prior to Hamdan, on the same side of the detainee question as the lawyers at the Justice Department who were smeared by Liz Cheney and Bill Kristol.

So who is the real Elana Kagan? I’m not concerned about Kagan’s lack of Judicial experience or whatever other trumped up charges the fringe right will be bring – the former is, in my opinion, a plus. The issue with Kagan is that there is scant evidence of any core or animating values.

In a way that’s what is most disappointing in her nomination but also the least surprising. Once again, when faced with an opportunity to push in a decidedly liberal direction the President has chosen to play it safe. He’s nominated a true blank slate in order to, one supposes, avoid a bruising ideological fight. But in doing so though he has also declined to be an advocate for a more active liberalism at a time when the nations challenges call out for a more activist government.

Kagan is a safe pick to be sure and she is also a boring and predictable selection at a time when we should be demanding bold action from our leaders. She’s unlikely to be the fierce advocate for expansive Executive power that critics fear, just as she’s unlikely to be a fierce advocate for much of anything. Which is, sadly, exactly as Obama wanted.

Photo by Harvard Law Record

T.R. Donoghue is an attorney living in Denver, Colorado where he works on labor and employment issues. T.R. has worked extensively in public policy and politics and on both state and national campaign ...read more


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