That’s $100 On Or Against Elena Kagan, We Aren’t Sure

SCOTUSBlog, before the announcement of the Stevens retirement:

So, here is how I expect the next few months to play out.  In the spring, Justice Stevens will announce his retirement.  In May or June, the President will nominate Elena Kagan.  Explaining that her paper record is a thimble-full of Sonia Sotomayor’s, Senator Leahy will schedule hearings and Senator Reid will schedule a floor vote before the summer recess.  The only theme that will give opponents any success is that she fails to express her views on anything.  She will then be confirmed by a vote of 61 to 39.  Ok, that last prediction about the exact vote could be off by a bit, but I feel pretty confident about everything else.

Stephanie Woodrow at Main Justice before the announcement:

In a National Public Radio interview Monday, [Jeffrey] Toobin predicted that Solicitor General Elena Kagan will replace the 89-year-old judge after he retires, possibly at the end of the current term in June 2010.

“They [the Obama administration has] very much suspected that a vacancy is imminent and I think they do have a candidate in mind and frankly I think I know who it is. I think it’s going to be Elena Kagan, the current solicitor general and the former dean of Harvard Law School,” Toobin said.

He continued, “She has a reputation as a consensus builder. She is someone who brought vigorously fighting factions at Harvard together. She worked in the Clinton administration and had good relationships with Republicans in Congress at the time. She has never been a judge, which I think is a point in her favor for Obama. There are all former judges on the court now, and I think Obama wants people of more different backgrounds. So I think she’s the likely choice.”

Ed Whelan at NRO (again before the announcement):

If (as I expect) there is a Supreme Court vacancy soon, one big question that will affect the political dynamic over the White House’s selection of a nominee is whether the Left will mount vigorous and effective opposition to the possible nomination of Solicitor General Elena Kagan.  It is a remarkable testament to the perceived political impotence of the Left that everyone seems to take for granted that the answer to that question is no.

Let me make clear at the outset that the question I am posing is not whether the Left would oppose confirmation of Kagan after she has been nominated.  It is instead whether the Left would exert any sway in stopping Kagan from being nominated in the first place.

Let’s briefly review some of the reasons why the Left would not be happy with a Kagan nomination.  (These do not add up to compelling reasons why conservatives should be happy with a Kagan nomination, but that’s a matter for another post.)

First, the Left is hungry for a liberal lion who will use the confirmation hearing to make a compelling public case for the so-called “progressive” vision of constitutional interpretation.  Its hunger is all the greater after last year’s confirmation hearing in which now-Justice Sonia Sotomayor demoralized and disgusted her supporters by trying to disguise herself as a judicial conservative.

Second, far from being a liberal lion, Kagan has (as these New York Times articles put it) “provided few clues about where she stands on the great legal issues of the day” and has established a “reputation for finding the middle on difficult legal and political issues.”  (One notable exception to her cryptic record is the topic of gay rights, where Kagan has supplemented her academic record of extremist rhetoric and utterly implausible legal analysis by subverting, in her SG capacity, the Don’t Ask, Don’t Tell law and the Defense of Marriage Act.)

Third, on issues of executive power and national security, Kagan is far from the Left.  For example, as the second of the hyperlinked NYT articles notes, at her confirmation hearing for Solicitor General, there was “no daylight” between Kagan and Republican senators on “the president’s broad authority to detain enemy combatants.”  (See more examples in this previous post of mine.)

Fourth, in her briefing of the Citizens United campaign-finance case, Kagan abandoned the actual hard-Left rationale of the Court’s 1990 ruling on corporate-speech restrictions in Austin v. Michigan State Chamber of Commerce and thus paved the way for the conservative Court majority to overrule Austin in Citizens United.

Fifth (and much to her credit in my eyes), Kagan has displayed genuine admiration and appreciation for Justice Scalia as well as a liberality of spirit towards conservative law professors and students at Harvard.

Sixth, if she were to make the transition from SG to the Supreme Court, Kagan would face extraordinary recusal obligations during her initial two or three years on the Court, with those recusal obligations disproportionately concentrated in matters of importance to the Obama administration.  Among other things, Kagan would have to disqualify herself from all cases in which she authorized an appeal from an adverse district-court ruling (and virtually all appeals from adverse district-court rulings require SG approval).  She would also likely have to disqualify herself from challenges to legislation supported by the Obama administration (including, if it is enacted, Obamacare) if she offered pre-enactment advice on the legal questions at issue.  In the event that the other eight justices were divided, her recusal would mean that conservative results in the courts below would stand.  Perhaps more importantly, Justice Kennedy might well be much more open to the conservative approach in such cases, precisely in order to avoid an unproductive deadlock.

Richard Hasan in Slate:

Before turning to the 2012 ramifications, let’s clear the brush about the nomination to replace Justice Stevens. Barring a bombshell, there will be no filibuster. Democrats and Republicans have mastered the Kabuki dance: The president picks a nominee who has been cautious enough on contested social issues so as not to be plausibly characterized as outside the mainstream. Senators from the opposition party complain that the nominee has not been forthcoming, or is ideologically radical; staff digs for dirt on the nominee’s past but finds none. Senators from the president’s party rally around the nominee. During the confirmation hearings, the nominee gives milquetoast, noncommittal answers, and comes across as likeable enough with a heartfelt personal narrative. The opposing senators decline to filibuster. The nominee joins the court.

So it has been with Roberts, Alito, and Sotomayor, and so it probably will be the next nominee. Democrats need only one Republican senator to avert at filibuster, and they will find Sen. Orrin Hatch of Utah or Sen. Olympia Snowe of Maine (and probably a bunch more) likely to allow a vote on a competent nominee who has stayed out of trouble. Republicans found enough Democrats to block a filibuster of Justice Alito, and his nomination actually moved the court to the right. This nomination won’t move the court to the left at all.

Given the steps of the Kabuki dance, it is no wonder that Solicitor General Elena Kagan is one of the supposed frontrunners for the Stevens seat. She has a stellar résumé, and conservatives have found almost nothing to criticize in her record on abortion or gun rights. (She may well be a reliable liberal vote on these issues, but there won’t be a long enough paper trail on these controversial issues to scuttle her.) The one potential wrinkle is her support of gay rights, but these days, that issue hardly seems enough to stop her nomination.

Steve Benen:

The panel on “Fox News Sunday,” not surprisingly, explored the upcoming nomination of a new Supreme Court justice, prompting some odd observations from Bill Kristol.

His analysis started out sounding fairly reasonable. Kristol said President Obama would likely choose a nominee “who’s got high, you know, very hard-to-challenge credentials, and I think that’ll be Solicitor General Kagan.”

He then proceeded to urge Republicans to challenge the hard-to-challenge prospective nominee.

“…I think, for example, Kagan would be a very respectable choice. But nonetheless, I think most Republicans would oppose her and, honestly, should oppose her, with respect and with deference to her, you know, impressive academic credentials, because she will be a reliable liberal vote, and I think Republicans should want to have a serious debate on the Constitution.”

Soon after, Kristol concluded, “I endorse Elena Kagan.”

I see. So, to review, Kristol thinks Solicitor General Elena Kagan has “very hard-to-challenge credentials” and would be a “very respectable choice” for the high court. He also thinks Senate Republicans should fight against her, if she’s nominated, because she isn’t conservative enough.

And then to top it off, Kristol “endorsed” Kagan’s nomination.

David Weigel:

Might I suggest that he really thinks Kagan is a very respectable choice? Kristol’s magazine, The Weekly Standard, has occasional meet-and-greets with the likes of Supreme Court justices. That’s common practice for Washington conservative magazines — the American Spectator has regular dinners with power players, too. And from what I’ve heard, since Kagan became solicitor general, Justice Antonin Scalia has beamed about how smart she is. Fairly or unfairly, conservatives don’t think that Justice Sonia Sotomayor has the pull with her colleagues to break the 5-4 conservative majority on important cases. They do think that Kagan could do this.

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?

Kagan’s record on social issues will likely be perfectly satisfactory, even pleasing, to most progressives.  She is, by all appearances, solidly pro-choice and in favor of gay equality.  But even on domestic issues, serious questions have been raised about how progressive her views actually are, as exemplified by this New York Times profile from Eric Lichtblau last year examining Kagan’s prospects as a Supreme Court nominee:

“I want a Brennan or a Marshall, someone clearly on the liberal side,” said Michael Ratner, president of the Center for Constitutional Rights, referring to liberal court icons William J. Brennan and Thurgood Marshall.

I don’t think Kagan is at that end of the liberal spectrum,” said Mr. Ratner, whose nonprofit legal group has helped lead the push for greater legal protections for prisoners at Guantánamo Bay. “Why they would put someone in who might not be a liberal anchor for the court is really bothersome, and I don’t see Kagan playing that role” . . . ..

Ms. Kagan first gained high-level notice as an aide in the Clinton White House, first as an associate counsel and then as deputy director of the Domestic Policy Council, working on issues like tobacco regulation, welfare reform, education, hate crimes and affirmative action.

There were some important issues on which Elena took centrist or even center-right positions, but it was never clear whether she was pressing her own views or merely carrying water for her boss on the Domestic Policy Council, Bruce Reed,” said Christopher Edley Jr., who worked with Ms. Kagan at the White House and is now dean of the law school at the University of California, Berkeley.

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).  One can reasonably argue that her obligation as Dean was to secure that funding for the school, but one can also reasonably question what it says about a person’s character when they are willing to flamboyantly fight against “profound wrongs” and “moral injustices of the first order” — only as long as there is no cost involved.

What makes the prospect of a Kagan nomination so disappointing is that there are so many superior alternatives — from the moderately liberal and brilliant 7th Circuit Judge Diane Wood and former Georgia Supreme Court Chief Justice Leah Ward Sears to the genuinely liberal Harold Koh (former Yale Law School Dean and current State Department counselor) and Stanford Law Professor Pam Karlan.  If progressives aren’t willing to fight Obama for the Supreme Court, what are they willing to fight him for?

UPDATE: Tom Goldstein at SCOTUSBlog

Sam Stein at Huffington Post

Glenn Greenwald

Adam Serwer at Tapped

UPDATE #2: Lawrence Lessig at Huffington Post

More Greenwald

UPDATE #3: Greenwald and David Frum at Bloggingheads

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3 Comments

Filed under Political Figures, Supreme Court

3 responses to “That’s $100 On Or Against Elena Kagan, We Aren’t Sure

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