Kagan May Mean a More Conservative Court

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>One irony of President Obama's nomination today of Solicitor General Elena Kagan to the Supreme Court is that the effect of a Democratic president filling the seat of Republican-appointed Justice John Paul Stevens will likely be to make the Court more conservative.


Another irony is that after vowing to name a justice with "a keen understanding of how the law affects the daily lives of the American people," the president has chosen a New-York born graduate of Princeton and Harvard Law School who has spent almost her entire career teaching in elite law schools and working in the upper echelons of the Clinton and Obama Administrations. Her experience has been far from the circumstances of most ordinary Americans. (Stevens is the only member of the current Court who did not attend Harvard or Yale Law School.)

This is not to deny the 50-year-old Kagan's notable strengths: a brilliant legal mind, demonstrated skills as a consensus-builder and conciliator as dean of Harvard Law School from 2003 to 2008, an engaging personality, skilled at getting along with liberals and conservatives alike, and parents whose lives and careers exposed her to the struggles of ordinary people -- plus, the prospect of serving as a justice for 40 years if she, like Stevens, lasts until age 90.

Nor is it to deny that Kagan is widely expected to join the Court's liberal bloc and will get plenty of flak from conservatives during her confirmation process, especially over her passionate efforts to ban military recruiters from Harvard Law School's career services facilities because of Congress's exclusion of gays from the military.

But Kagan's record suggests that she probably falls to the right of Stevens -- arguably the most liberal current justice -- at least on the presidential-power and war-on-terror issues that may be more important than any others that come before the justices in our times.

This helps explain why the enthusiasm for Kagan among moderate liberals is not shared by some of their more leftist allies.

To be sure, one of Kagan's distinctive attributes is her extraordinary care over the years to avoid disclosing her opinions of most controversial issues -- abortion, race, and religion, for starters -- even in private conversation, let alone in her public paper trail. So there is little basis for assessing whether she will be more or less liberal than Stevens on many issues.

But on presidential power and terrorism, she is more of a known quantity.

Justice Stevens led the Court's assault on the Bush Administration's sweeping claims of presidential and congressional power to wage war against terrorism. In three big decisions in 2004, 2006, and 2008, narrow liberal majorities -- with swing-voting Anthony Kennedy providing the fifth vote -- for the first time asserted judicial power to review presidential detentions of alleged "enemy combatants" seized and held abroad. Stevens and his allies also invalidated the rules decreed by Bush for "military commission" trials of foreigners for alleged war crimes and severely restricted interrogations of suspected terrorists.

Kagan has had no occasion to revisit those precise issues as solicitor general. But on somewhat analogous issues -- both in her 2009 confirmation testimony and in defending Obama's continuation of some Bush policies that left-liberals reviled -- she has sought to limit the reach of the 2008 decision and has firmly rejected the stance of the left.

"Among the most disturbing aspects" of Kagan's record, wrote left-liberal commentator Glenn Greenwald in Salon, "is her testimony during her Solicitor General confirmation hearing, where she agreed wholeheartedly with [Republican Senator] 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.'"

Likewise, as Solicitor General, she has forcefully championed Obama's continuation of Bush's long-term detention without trial of Guantanamo prisoners; of Bush's detention of prisoners in Afghanistan with no judicial review at all; and of Bush's use of the "state secrets" doctrine to fend off lawsuits over Bush's warrantless wiretapping program. Kagan has also apparently helped shape Obama's plan to use congressionally revamped military commissions to try some terrorism suspects and other broad claims of presidential power.

Of course, it is Kagan's job as Solicitor General to defend Obama's policies even if she disagrees with them. But she has given no hint that she disagrees.

Commentators on the left also complain that Kagan never compiled much of a record of aggressively championing liberal causes during her years as a law professor. Some say she was too friendly as dean of Harvard Law School to conservatives and did not recruit as many women and minorities for the faculty as diversitycrats desired.

Speaking as a moderate independent, I like everything about Kagan that the left dislikes. To borrow from my friend Harvey Silverglate, a leading Boston lawyer who champions both civil liberties and an old-fashioned liberal's brand of political incorrectness, "they want people who look different but think alike."

Kagan seems to be a woman who thinks for herself.


Stuart Taylor talks with The Atlantic's Bob Cohn about the nominee's record, why Scalia likes her, and what people don't get about the Supreme Court. Watch the video here.
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Stuart Taylor Jr., a contributing editor for National Journal, is teaching a course on the news media and the law at Stanford Law School.

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