SCOTUSBlog refutes Glenn Greenwald's criticism of Elena Kagan view on executive power.

[ClarkUSA]

SCOTUSBlog, in their 9,750 word profile of Kagan:

"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."

Glenn Greenwald is clueless. This is not the first time he's been erred in his legal understanding and judgment, either:
http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=433&topic_id=291738&mesg_id=291738

[jefferson_dem]

1. I admire Greenwald's passion and his pen...

but sometimes he just comes across as an arrogant fool. This is one such time.

[ClarkUSA]

8. Greenwald jumped the shark awhile ago. Al Giordano describes Greenwald best, though...

"Now, it has been entirely predictable that the board members of Poutrage, Inc. – those self-proclaimed “progressive” pundits who have never been community organizers and resent Obama and all the rest of us that have actually done that work and won political battles because they keep failing at it – are caught up in their cyclical careerist protagonism over the Kagan nomination. I won’t mention any names, but of course Glenn Greenwald and Jane Hamsher are up to their Johnny-one-note tricks of getting their faces on the cable talk shows and in the media by proclaiming themselves “progressives against an Obama proposal” on any particular policy. They are as predictable as they are unconvincing, and although they always lose, they never change their bumbling tactics, I conclude that they are not interested in winning the issues they claim to care about. They are only interested in their own careers and egos and in fooling the gullible to send donations to their projects of self-enrichment. The issues are merely the means to try to make themselves relevant to the national discourse."

His entire endorsement of Kagan is worth the read: http://narcosphere.narconews.com/thefield

[depakid]

12. Actually, Greenwald's just getting started

and his critics are the ones currently with egg on their faces.

[NJmaverick]

2. K & R

[lillypaddle]

3. thanks for posting

kick & rec

[HiFructosePronSyrup]

4. Lousy good for nothing Obama supporters.

:crazy:

[ChimpersMcSmirkers]

6. They make me sick!

[Political Tiger]

5. Greenwald is an ubiquitous complainer when it comes to Obama

He's the left's Rush Limbaugh. He plays to his audience who, like him, despise Obama. Like Limbaugh, he has his ditto heads who hang on to every word he says and believe everything he says no matter what, and like Limbaugh, he is not to be taken seriously.

[Cha]

7. Thanks Clark.. how nice

to have real information and not be stuck with kneejerkers who blog.

[Cowpunk]

9. LALALALALALALALA I can't hear you!

Yes, let's just keep pretending that this never happened.

[Cha]

10. It proves beyond a shadow of a doubt that greenwald

is nothing but a pretzel.

"by Doug Kendall, President & Founder, and Hannah McCrea, Online Communications Director, of Constitutional Accountability Center (CAC)

Over at Salon, Glenn Greenwald has been urging calm among progressives who are appalled and angry at the Supreme Court’s ruling last week in Citizens United v. FEC, and accusing progressive critics of the ruling of over-simplifying the law and under-respecting the First Amendment. But his own analysis is surprisingly shallow and his burden is pretty high when he is essentially saying that Justice Stevens’ brilliant and comprehensive 90 page dissent, joined in full by Justices Ginsburg, Breyer, and Sotomayor, gets the Constitution wrong, and the five conservatives on the Roberts Court got this one right. He doesn’t come close to making that argument stick."

[Tarheel_Dem]

14. What will his sycophants do when they learn, that like Ralph Nader,

Greenwald is nothing more than a rightwing puppeteer. He's useful at getting the "activists" all riled up, and if it hurts the administration or the Democratic party, so much the better. I have less than zero respect left for phonies like Greenwald & Hamsher. They excoriate the president for attempting to reach across the aisle, and all the while they're raking in the $$$$, from their rightwing string pullers.

[depakid]

11. Apparently Scotus blog wasn't paying attention (or more likely you cherry picked certain phrases)

Without understanding the context.

Greenwald responds on point to the distortion (via Lessig):

If I were listening to that and had no familiarity with what I had written, I'd have thought: Wow, that Glenn Greenwald is either completely dishonest or a total idiot; how can he go around claiming that Kagan's 2001 law review article defended Bush detention policies when it was written before those policies were even implemented and had nothing to do with those policies? People questioning the Kagan pick obviously have no credibility. And that, of course, is exactly the impression Lessig's accusation was intended to create.

Except it's totally false. I've never said, believed or even hinted at any such thing -- let alone "repeatedly asserted" it. Lessig just made that up out of thin air and, knowing nobody was there to dispute it, unleashed it on national television. Kagan's comments embracing indefinite detention powers came in her 2008 Solicitor General confirmation hearing when answering Lindsey Graham: please see Law Professor Jonathan Turley's superb analysis on that exchange. Her position on detention was expressed there, not in her 2001 Law Review article, and -- contrary to Lessig' inexcusably false accusations -- I never, ever claimed otherwise. In fact, here is what I wrote about her 2001 law review article in "The Case Against Elena Kagan":

The only other real glimpse into Kagan's judicial philosophy and views of executive power came in a June, 2001 Harvard Law Review article (.pdf), in which she defended Bill Clinton's then-unprecedented attempt to control administrative agencies by expanding a variety of tools of presidential power that were originally created by the Reagan administration (some of which Kagan helped build while working in the Clinton White House), all as a means of overcoming a GOP-controlled Congress.

This view that it is the President rather than Congress with primary control over administrative agencies became known, before it was distorted by the Bush era, as the theory of the "unitary executive." I don't want to over-simplify this issue or draw too much importance from it; what Kagan was defending back then was many universes 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 questions they might raise.

How can Larry Lessig possibly say on television that I claimed the 2001 Kagan law review article defended Bush's detention powers when I explicitly wrote that the article was about Clinton's domestic policies; that she was discussing the unitary executive theory "before it was distorted by the Bush era"; and that "what Kagan was defending back then was many universes away from what Bush/Cheney ended up doing"? Let's repeat that: "what Kagan was defending was many universes away fromwhat Bush/Cheney ended up doing." I know full well that Kagan's 2001 law review article was about domestic policy and not Bush detention policy -- that's as obvious as 2+2=4 and I've never believed or stated anything close to what Lessig said. In fact, I explicitly said the opposite. One has to be completely disconnected from any concerns about factual accuracy to say something like that in light of what I actually wrote.

More detail here: http://www.commondreams.org/view/2010/05/11-3

[Unvanguard]

17. Wow, that's a pretty disingenuous take on Greenwald's part.

He said: "And what little there is to see comes from her confirmation hearing as Solicitor General and a law review article she wrote in 2001, in which she expressed very robust defenses of executive power, including the power of the president to indefinitely detain anybody around the world as an enemy combatant, based on the Bush-Cheney theory that the entire world is a battlefield and the US is waging a worldwide war."

To interpret that as being a statement about the law review article is a natural reading of the sentence.

In any case, did you actually read the SCOTUSblog post? It talked about her Solicitor General hearing, too.

Edit: It did, but not in any great detail. There are other, better SCOTUSblog posts on the subject; I have to go to sleep, so I won't find them for you, but it shouldn't be too hard.

[depakid]

18. Just adressing the particular point at hand

and in that respect, seems to me that there's a major distortion going on- don't you think?

[impik]

13. Greenwald's fans are blind sheep. They don't even try to fact-check.

If he said so, then it's true. Especially when he kicked the president in the balls, which he does all the time.

[depakid]

15. People who are critical thinkers and grasp the arguments understand well who the sheep are

[Unvanguard]

16. Indeed. There is no reason to believe she is anything like the picture Greenwald has painted.

As SCOTUSblog demonstrates effectively.

[depakid]

19. If you have something substantive to add on that, please have at it

Otherwise, all you do is make a bare assertion that's incapable of affirmation or rebuttal.

[HughMoran]

20. Yeah, I wonder what his real agenda is anyway?

:shrug:

[Jefferson23]

21. Greenwald is not alone in that analysis:

snip* However, several of her works deal with presidential power, particularly her article “Presidential Administration” (LEXIS password required). This is a beautiful, extremely perceptive work, closely observed, brilliantly reasoned, and cautious. In it, Kagan notes the increase of presidential power as Congress builds the administrative and regulatory state. The powers that Congress vests in regulatory agencies are necessarily assumed and controlled by the president. Kagan writes as a detached observer, yet there is much to suggest her admiration for the evolution of the strong presidency in the period after World War II. Her career choices, often pushing back her academic career to accept appointments in Democratic administrations, reflect an attitude of engagement with it. All of this leads to the assumption that as a Supreme Court justice, Elena Kagan will be no enemy to the powers of the executive. As my readers know, I am not sympathetic to this attitude. But I am impressed with Kagan’s powers of analysis and presentation just the same. My suspicion–and it’s only a suspicion–is that Kagan is a liberal in the sense of the Kennedy and Johnson Administrations, someone who has faith in the power of the executive to shape a better and more just state. She pays lip service to the limitations on executive authority contained in the Constitution, but she’s generally in the thrall of executive power.

On this point the Kagan choice probably reflects the perspective of the man who made it, Barack Obama: not the Obama of the 2008 presidential campaign but rather the Obama who has governed since January 20, 2009—broadly continuing the strong executive posture of the Bush team in national security matters.

http://www.harpers.org/archive/2010/05/hbc-90007020