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:
“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.”
Glenn also notes an exchange between Senator Lindsay Graham and General Kagan (R-SC) regarding her views on indefinite detention. In that exchange, Kagan acknowledged that America may indefinitely detain a known terrorist, yet she was also very clear that such a detention could only occur after the detainee received “substantial due process” from an “independent judiciary” in a “transparent” process. In other words, Kagan embraces Justice Stevens’ view of detainee rights, as Stevens has consistently voted to resist Bush’s theory of detention-without-due-process.
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.
A particularly fraught issue for General Kagan is her strong stance on gay rights. Kagan famously described the antigay “Don’t Ask, Don’t Tell” policy as “a moral injustice of the first order” while serving as dean of Harvard Law School, and she supported litigation intended to undermine this discriminatory policy. Yet as Solicitor General, Kagan has scrupulously complied with her legal duty to defend federal laws that she personally disagrees with, including anti-gay policies like DADT and DOMA. For progressives, her unwillingness to cast aside these bigoted and inexcusable policies may be a disapointment, but her conduct as Solicitor General also reflects her understanding that a public official must first be loyal to the law. It will also be a welcome contrast to her conservative colleagues who believe in one set of laws for the powerful and another, less-favorable set for everyone else.
Most importantly, Kagan’s life teaches her to understand that there are terrible consequences when a judge ignores laws intended to protect ordinary Americans. In praising her former boss and “hero,” civil rights icon and Supreme Court Justice Thurgood Marshall, Kagan spoke of Marshall’s understanding that “behind law there are stories” of people who depend on the law for health, safety, fairness and opportunity. She understands that it is profoundly cruel to rob ordinary Americans of the laws they depend on, and she has spent her career fighting to ensure that those laws will be there when they need them. At times this has led to bitter disappointment, as it did when she lost the inexcusible Citizens United case this year, or when she watched the Court sweep away her work on tobacco regulation by fiat. Yet General Kagan has not faltered in her dedication to this mission; and she will be an excellent Supreme Court justice.
Kagan has also emphasized the need for a “compassionate government“:
“Where I grew up — on Manhattan’s Upper West Side — nobody ever admitted to voting for Republicans,” Ms. Kagan wrote, in a kind of Democrat’s lament. She described the Manhattan of her childhood, where those who won office were “real Democrats — not the closet Republicans that one sees so often these days but men and women committed to liberal principles and motivated by the ideal of an affirmative and compassionate government.”