Elena Kagan Is a Progressive on Executive Power

[usregimechange]

Elena Kagan, 45th Solicitor General of the United States


The public list of 10 lawyers apparently under consideration to be the next Supreme Court nominee has produced a good bit of comparative analysis of their assumed political leanings. Much of the commentary seems to me to exaggerate the differences among this group. A case in point is the critique of Solicitor General Elena Kagan's views on executive power. Glenn Greenwald, whose writing I generally admire, has speculated, for example, that Kagan would move the court "closer to the Bush/Cheney vision of Government and the Thomas/Scalia approach to executive power and law." He also believes that Kagan was silent in the face of presidential abuses of power by the Bush administration.

That is all way off the mark. Let's take Greenwald's second point first. As dean of Harvard Law School, Kagan sharply and publicly criticized the excessive claims of executive authority put forth by Bush administration lawyers such as John Yoo. In an address at her school's graduation ceremony in 2007, she forthrightly condemned "the expedient and unsupported legal opinions" used by Yoo and other lawyers to justify violations of federal laws regulating wiretapping and interrogation. Kagan minced no words in her critique of Bush administration lawyers who "failed to respect the law" or who manipulated, bent, or evaded the law "to seek short-term advantage." She also held up as a model to the graduating students and their families and friends the actions of independent counsel Archibald Cox in standing up to President Nixon. And she praised other lawyers such as Jack Goldsmith, who insisted that President Bush cease the secret wiretapping program because they believed it unlawful.

These views do not come as a surprise if one reads Kagan's 2001 Harvard Law Review article "Presidential Administration." She does not endorse anything remotely like the Bush-Cheney view of broad presidential power to evade laws passed by Congress. (The article was written before Sept. 11 prompted articulation of the Bush-Cheney doctrine.) Greenwald correctly acknowledges that "what Kagan was defending back then in <2001> is light years 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 issue they might raise." He nonetheless sees her positions on presidential power as leaning in a more conservative direction that the justice she would replace, John Paul Stevens.

I think that's wrong. Kagan's views on the president's power to direct the executive branch are in fact fully consistent with the positions taken by Justice Stevens. Her legal views are based in significant part on two of Stevens' most important opinions for the court, Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. and Hampton v. Mow Sun Wong, decisions about the authority of federal agencies that Kagan rightly reads as encouraging presidential leadership under statutes that give discretion to the executive branch.

http://www.slate.com/id/2251138/

[EFerrari]

1. Siegelman: Justice Department Hasn't Changed Under Obama

Tuesday, December 1, 2009
Siegelman: Justice Department Hasn't Changed Under Obama
How has the U.S. Department of Justice (DOJ) changed now that George W. Bush is gone and President Barack Obama is in charge?

It hasn't changed, says former Alabama Governor Don Siegelman. And that's distressing news for progressives who hoped to see accountability for the Bush officials who used the DOJ as a political weapon.

It's particularly distressing for Siegelman, who is perhaps the most high-profile victim of a Bush-era political prosecution. But what other conclusion can Siegelman reach? He recently saw U.S. Solicitor General Elena Kagan, an Obama appointment, file a brief urging the U.S. Supreme Court not to hear the Siegelman case.

http://legalschnauzer.blogspot.com/2009/12/siegelman-justice-department-hasnt.html

[mmonk]

4. Thanks.

[EFerrari]

5. I feel like one of those Poeian ravens lately.

But it is what it is.

[mmonk]

8. Yes.

I will be watching closely. I don't expect the rule of law and checks and balances to return in my lifetime. My eyes were opened early on after the election. But I would still like to think someone who doesn't go along with imperial presidency precepts might have a chance to emerge.

[BrklynLiberal]

2. I would settle for her, but would prefer Pam Karlan or even Kathleen Sullivan

[Better Believe It]

3. Glenn Greenwald's Response To Dellinger's Defense of Kagan

The White House Seeks Out Kagan Defenders
by Glenn Greenwald
April 17, 2010

Glenn Greenwald was previously a constitutional law and civil rights litigator in New York. He is the author of the New York Times Bestselling book "How Would a Patriot Act?," a critique of the Bush administration's use of executive power, released in May 2006. His second book, "A Tragic Legacy", examines the Bush legacy.


The Huffington Post's Sam Stein reported yesterday that the White House this week "reached out to progressive allies" and asked them "to dismiss" the column I wrote on Tuesday arguing against the selection of Elena Kagan for the Supreme Court. I have no idea if there is a causal connection, but there quickly emerged three pieces criticizing my argument and offering ringing endorsements of Kagan: this piece at Slate by former Clinton Solicitor General Walter Dellinger; this Huffington Post argument by legal analyst and author Linda Monk; and this cliché-filled, ad hominem, substance-free rant from Akin, Gump partner Tom Goldstein of SCOTUSblog. The first two raise substantive points meriting some responsive attention, though there are also a couple of facts about Goldstein I'm going to highlight.

Dellinger's defense of Kagan in Slate trumpets in the headline that "Elena Kagan Is a Progressive on Executive Power." I'm tempted to just suggest that everyone go review the paper-thin case he's able to muster -- presumably by searching through her entire career -- and then determine on your own if he comes close to establishing anything of the sort. I'd guess that, of the three pro-Kagan defenders who emerged this week, the Party-loyal Dellinger is the one most likely to have been recruited by the White House. If Dellinger's article is all there is to say about Kagan's supposedly "progressive" approach to these issues, that is probably a stronger indictment of her nomination than anything I've said so far.

Dellinger's entire pro-Kagan defense amounts to two claims: (1) in a 2007 graduation speech, Kagan described John Yoo's OLC memos as "expedient and unsupported legal opinions" and said he "failed to respect the law"; and (2) her 2001 Law Review article on executive authority was in the mainstream of judicial thought, consistent with Justice Stevens' views, and devoted to allowing the President to advance progressive goals through his control over regulatory agencies.

As for her 2007 speech, the very idea that her opposition to Bush's radical executive power theories is established by such tepid, platitudinous remarks about John Yoo -- voiced for the first time six years into the Bush presidency, by which point virtually everyone (including even the Bush DOJ) had repudiated Yoo's memos -- is, with due respect to Dellinger, laughable. Whether John Yoo's torture memos were well "supported" is a small slice of the attack on the rule of law and the Constitution launched by Bush and Cheney. Indeed, what Dellinger describes as Kagan's remarks illustrates that point perfectly, and actually makes the opposite point of the one he sets out to establish:

" also held up as a model to the graduating students and their families and friends the actions of independent counsel Archibald Cox in standing up to President Nixon. And she praised other lawyers such as Jack Goldsmith, who insisted that President Bush cease the secret wiretapping program because they believed it unlawful."

That second sentence is factually false, the opposite of reality. While Goldsmith was one of the Bush lawyers who objected to parts of the Bush NSA program in early 2004, he was the OLC lawyer who approved of and legally sanctioned Bush's illegal warrantless eavesdropping program -- the one that was exposed by the New York Times and created such controversy. In other words, it was Goldsmith, while at OLC, who told the Bush White House that the President had the authority to eavesdrop on Americans without the warrants required by FISA, based on the radical theories that Article II vested him with the power to ignore Congressional statutes and that, in any event, the AUMF "implicitly authorized" him to do so. If Jack Goldsmith is Kagan's symbol of The Rule of Law -- and she caused great controversy (and won the affection of the Right) by hiring Goldsmith at Harvard once he left the Bush administration -- that ought to be added to the pile of reasons why progressives should be deeply wary of her elevation to the Court.

As for Kagan's 2001 law review article on executive authority, it wasn't me who linked it to the Bush/Cheney expansion of executive power, but rather her current Deputy Neal Katyal who did so ("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"). And it wasn't me who said that this article revealed her to be "certainly a fan of presidential power," but rather Texas A&M Government Professor and administrative law expert William F. West. I'm not claiming this law review article is evidence of some sort of right-wing radicalism, but as I said, it's worth examining only because it's one of the very few pieces of available evidence for knowing what Kagan thinks about anything, and there, her position fell near the far end of the spectrum on executive power .

It may be true that strong executive power claims can be used to advance progressive goals when there is a progressive President, but such power can and will be used for exactly the opposite purpose when there is a conservative President (and indeed, Kagan herself acknowledges that the powers she defends and helped expand were first created by Reagan lawyers who wanted to empower the President to wrest control of administrative agencies from the then-liberal Congress). But that's always the danger of executive-power enthusiasts like Kagan (and the right-wing ideologues who ruled Washington for the last decade): when their party controls the White House, they are eager to take control away from the much more democratic legislative branch and vest it in the President because of the Good Acts they think will be possible. But they willfully ignore the fact that their party's control of the White House will inevitably be temporary, and the Executive-centered system of government they create will then be used for exactly the opposite purposes, with very little democratic checks and restraints.

Everyone should decide on their own if Dellinger offered convincing evidence to be confident that Kagan's approach to these issues will be similar to Justice Stevens' approach, particularly given the ample evidence to the contrary. If that's the best case that can be made on behalf of Kagan, that speaks volumes.

Please read the full article at:

http://www.commondreams.org/view/2010/04/17-7

[annabanana]

6. k&r. . . n/t

[usregimechange]

7. Interesting, thanks for posting