The Wall Street Journal’s editors have unearthed damning evidence of Supreme Court nominee Elena Kagan’s radicalism, which is sure to derail her nomination. “Across her career,” the editors write, “Ms. Kagan has… been a reliable legal partisan“:
While Harvard dean, she joined three other law school deans in a letter to the Senate Judiciary Committee on detainee policy, arguing that “immunizing the executive branch from review of its treatment [of detainees] strikes at the heart of the idea of the rule of law.” In a 2007 Harvard commencement speech, Ms. Kagan disparaged legal memos written by John Yoo as “expedient and unsupported legal opinions,” that “failed to respect the law.” So much for crossing the intellectual aisle.
Indeed, Kagan’s views on executive immunization from review of its treatment of detainees were so extreme that the U.S. Supreme Court affirmed those views in the 2006 Hamdan v. Rumsfeld decision, in which Justice John Paul Stevens wrote in the majority opinion “[I]n undertaking to try Hamdan and subject him to criminal punishment, the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction.”
Likewise, Kagan’s view of John Yoo’s legal memos as shoddy and unsupported were shared by, among countless others, Jack Goldsmith, who succeeded Yoo’s boss Jay Bybee’s as head of the Bush Justice Department’s Office of Legal Counsel. Goldsmith found Yoo’s work to be so weak that, in a virtually unprecedented move, he withdrew Yoo’s memo authorizing torture, going so far as to submit his resignation on the same day “to ensure that the decision stuck.”
In both of these cases, Kagan’s views were solidly within the bipartisan legal consensus, which was that the Bush administration’s positions on detainees and torture were not supported by any fair reading of the law. The Wall Street Journal editorial board is of course free to differ with that consensus, but it’s important to understand that it’s their views, not Kagan’s, who are marginal and extreme here.