Elena Kagan – The Good, Bad and the Subjective

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For those not living in a cave Elena Kagan is President Obama’s nomination to the SCOTUS. Here’s the good, bad and variations in between.

Constitutional lawyer and civil rights litigator Glenn Greenwald has posted several times on Kagan. You can access them all via The latest on Elena Kagan

(1) University of Colorado Law Professor Paul Campos, who previously expressed shock at the paucity of Kagan’s record and compared her to Harriet Miers, has a new piece in The New Republic entitled (appropriately): “Blank Slate.

Kagan does not fair much better as the post goes on. Kagan is not a Blank slate. She has written quite a few scholarly legal papers that few are willing to wage through. That is not so much to defend her as a great choice, only to say some critics – left and right – are not doing their homework. I wish that Glenn had not taken Tweets from two moderate/liberal pundits to damn all liberals as potential mindless endorsers of any SCOTUS pick Obama makes. Liberals greatest strength and weakness is the diversity of opinion, a long way from the cult of personality the Right reserved for George W. Bush. For the sake of balance, also at salon is this piece from James Doty – The liberal case against Kagan is overstated

To begin with, Kagan’s professional biography reveals that she has spent the last several decades working closely with some of the country’s best known left and center-left figures. After graduating from Princeton, where she wrote an article hoping that a “more leftist left” would emerge in American politics, Kagan enrolled at Harvard Law School, where she served as a research assistant for the famed liberal law professor Larry Tribe. After her graduation from Harvard, she clerked first for Abner Mikva, a legendary figure of the American political and judicial left (and an Obama advisor). She next clerked for Thurgood Marshall, another liberal icon, whom Kagan has called her legal hero and the greatest lawyer of the 20th Century.

There is not much I can do about political labeling – the use of the word “left” for example. American liberals have been and continue to be Jeffersonian in their ideals. Kagan’s leftism seems like a blend of Jefferson and his nemesis  Alexander Hamilton. Not the European model the word left generally invokes. As much as Glenn and others think that Kagan is too Conservative, Conservatives have already begun labeling her a bona fide socialist. They have no evidence to support that assertion, but facts tend to jam the right-wing noise machine – Myths and falsehoods about Elena Kagan’s Supreme Court nomination

Walter Dellinger writing at Slate addresses Greenwald’s and others concerns that Kagan is of the unitary executive theory of the presidency and thus unlikely to challenge the on going expansion of presidential power – Elena Kagan Is a Progressive on Executive Power

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.

At least as far as presidential authority goes Delliger thinks Kagan is right in step with the retiring Justice John Paul Stevens.

What about Citizens United? Marvin Ammori writing at Balkinization in his interpretation of her writings thinks she is closer to the Conservative majority on the court than Stevens – Does Elena Kagan Disagree With Justice Stevens On Citizens United?

You can guess where this post is going.  In one of Dean Kagan’s very few law review articles, she describes the legal “rule” in agreement with Citizens United’s conservative majority, not Stevens’ dissent, and says Austin can’t be distinguished.  She does something similar for phone and cable companies (as I’ll explain), again siding with the largest corporations (and Justices Antonin Scalia and Clarence Thomas) over Stevens.

In the common language of law review articles, the conclusion can almost be implied: these exceptions should be overruled, as they are unjustified exceptions in the law.

What makes United a tough call is not that Kagan argued the adminstraion’s case against United ( that was her job representing her client – the Obama administarion) is that President Obama has made such strong critisms of the SCOTUS ruling on United –  He told Congress (to Alito’s displeasure) that it “reversed a century of law” and would “open the floodgates for special interests.” Would the president appoint someone who’s legal opinions on such a important and just plain boneheaed decision were the exact opposite of his own.

9750 Words on Elena Kagan – More than you ever wanted to know. From the SCOTUS Blog. The title is a bit exaggerated, you’ll have to click through and read Kagan’s published work to get a real sense of her legal point of view. Executive authority has expanded directly and by way of presidential directed agencies over the last 25 years. Kagan thought that Clinton’s expansion were justified in the sense of regulatory power to protect the nation and consumers when pressing issues were not properly handled or expedited by Congress. Not a bad thing some liberals might think on first impression, but a tack that can be abused – see Bush, John Yoo, David Addington, the DOJ under Gonzales and the abuses by the CIA as directed by the White House.
I would have rather done a post celebrating the nomination of Judge Diane Wood (7th Cir.).

And a sad farewell to Lena Horne, Singer and Actress Dies at 92. Lena Horne – Stormy Weather (1943) . A video on YouTube. Horne’s signature song.