Some have criticized Elena Kagan for supposedly favoring a strong view of executive power. They equate her views with support for the Bush Administration’s policies related to the “war on terror.” Generally speaking, these critics very significantly misunderstand what Kagan has written.
Kagan’s only significant discussion of the issue of executive power comes in her article Presidential Administration, published in 2001 in the Harvard Law Review. The article has nothing to do with the questions of executive power that are implicated by the Bush policies for example, power in times of war and in foreign affairs. It is instead concerned with the President’s power in the administrative context i.e., the President’s ability to control executive branch and independent agencies. That kind of power is concerned with, for example, who controls the vast collection of federal agencies as they respond to the Gulf oil spill and the economic crisis.
The more intense fire will come from the activist left, whose representatives have already voiced objections to Kagan's record of jurisprudence, her Cantabrigian clubbiness, her record on diversity, and the way that she seems to have constructed her career to leave as little in the way of a paper trail as possible. Remember, all judicial battles are fought on the right's terrain, so Democratic judges always have to pledge fidelity to a legal formalism they don't really believe in. As long as the Democrats have the votes, Republicans will have to grudgingly accept that this is the reality behind confirmation-process appearances. The critique from the left has been assisted by Ed Whelan, an influential commentator on the right, who appeared to compare Kagan's pragmatism to prostitution, borrowing a quip from Bernard Shaw. ... BTW: seven GOP Senators voted for her confirmation as SG.
Paul [Campos] makes a good case for why Kagan's credentials are unusual for a Supreme Court justice. It's certainly true that she has avoided expressing views about legal questions. I disagree, though, with the conclusion that this makes her a blank slate. There is a lot you can glean about a person based on professional and personal interaction. In some ways, these experiences can teach you more. Nothing about Antonin Scalia's judicial record would prepare you to expect him to produce a sweeping activist ruling like Bush v. Gore. But if you knew him personally, understood his conservatism and deep resentment of the left, then you might not be shocked. All this is to say that I believe it is possible, through the kind of engagement Obama and others have had with Kagan, to paint a portrait of a legal mind no less accurate than the portrait we have of many Supreme Court nominees.
Never having served on the bench, Kagan's record is relatively thin (no Connecticut firefighters this time) but here are the issues likely to come up during confirmation: Some on the left take issue with her minority hiring record while dean of Harvard Law and charge she was too complacent on the Bush/Cheney approach to executive power and national security. (More from Glenn Greenwald here.) Some on the right will make hay of her outspoken opposition to "Don't Ask, Don't Tell" and her subsequent resistance to allow military recruiting at Harvard. (More from Ed Whelan here.)
Marcy Wheeler looks at the bright side:
Given that Republicans will try to oppose Kagan on perceived sexual orientation, it’ll make potential gay bashing of Vaughn Walker over the Prop 8 trial much less effective andassuming Kagan is confirmedpotentially counter-productive for the haters.
Dave Weigel sketches out the opposition's argument:
We're already seeing a line of criticism develop. If I can sum it up in the bluntest possible language, Kagan is a New York, Ivy League elitist, a critic of the military during wartime, who was picked because President Obama is all of those things. It will be less difficult for conservatives to drum up skepticism about her than it was the self-made Sonia Sotomayor, who tripped up conservatives when they went overboard in accusing her of benefiting from her race.
For “the most transparent administration in history,” Kagan has a very thin paper trail to give clues to her beliefs. She has not published much a rarity among Harvard Law deans which Ed Whelan argues doesn’t meet Kagan’s own standards for Supreme Court justices.
What does all this mean? It signals that the White House doesn’t want a big fight over a Supreme Court confirmation. They don’t want to appoint someone with a track record of judicial activism or a record of strong political advocacy. Obama wants a stealth candidate, someone who can win a relatively quick confirmation battle. Of the names floated by the White House after Stevens’ retirement, Kagan attracted the least amount of public opposition.
It is also worth mentioning that Kagan has critics on the left who believe that she is almost a closet conservative. I highly doubt that is in fact the case. Kagan has a long record of liberal views and involvement with liberal causes. It is significant that there aren’t any noteworthy conservative or libertarian legal scholars or activists who believe that Kagan is somehow one of them or even believe that she is a centrist. Ed Whelan’s recent “baffle[ment]” at claims that Kagan “might secretly harbor some conservative legal views” is representative of the dominant view of her on the right, including among right of center legal scholars who know her well, such as Harvard’s Charles Fried. Still, there is at least a small chance that Kagan’s left-wing critics have divined her true views correctly. Even if she isn’t any kind of conservative or libertarian, she might be less liberal than administration supporters hope. With Kagan, that possibility at least exists. Not so with most of the other plausible nominees. The small but not infinitesmal chance that Kagan might actually turn out to less liberal than I expect is another strike in her favor.
Drum wishes Obama had gone for a more "solidly progressive nominee::
When Obama compromises on something like healthcare reform, that's one thing. Politics sometimes forces tough choices on a president. But why compromise on presidential nominees? Why Ben Bernanke? Why Elena Kagan? He doesn't have to do this. Unfortunately, the most likely answer is: he does it because he wants to. Some socialist, eh?
Jeffrey Toobin and Elena Kagan are old friends:
As it happens, this weekend I was finishing “The Bridge,” the new biography of Obama by David Remnick, our boss here at the magazine. Since Kagan’s nomination was imminent, I was struck by certain similarities between the President and his nominee. They are both intelligent, of course, but they also share an ability to navigate among factions without offending anyone. Remnick’s Obama is very… careful. He takes no outlandish stands or unnecessary risks. He is an exquisite curator of his own career. All of this is true of Kagan as well.
But on the Court, Kagan will have to do something she’s not done before. Show her hand. Develop a clear ideology. Make tough votes. I have little doubt she’s up to the job, but am less clear on how she’ll do it.
People are simply not going to entertain the idea that the former dean of Harvard Law School is unqualified for the job of Supreme Court justice. And that's not really a good thing... [T]he increasing concentration of Harvard and Yale grads is a problem. When the names of these elite universities serve as an inoculation against accusations of insufficient qualifications and grant their graduates qualified immunity in confirmation battles, those universities acquire a quasi-governmental power. It's a kind of Ivy-judiciary complex. It might be nice if the next nominee came from someplace else, to break up the duopoly a bit. I hear there are a couple of decent law schools west of the Hudson River.
[W]e have estimates from various pundits and experts about the points on an ideological line where the various rumored nominees will fall. I think we're all kidding ourselves, however, if we think these are anything other than very, very, rough estimates. Not only is it impossible to know exactly how any potential nominee will vote once on the court (even if she has an extensive paper trail; writing a law review article, giving a speech, and even writing a lower court opinion are just very different things than participating at the Supreme Court level), but the truth is we really have no idea what the key issues are going to be over the term of a nominee. Especially when the president follows the current partisan incentives and chooses a young nominee.