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Kagan faces criticism from left and right online

President Obama's nomination of Solicitor General Elena Kagan to replace retiring Supreme Court Justice John Paul Stevens was met with criticism from the left and the right Monday as liberals continued to raise questions about her views on executive power and conservative bloggers honed in on her lack of experience as a judge.


Salon blogger Glenn Greenwald has been Kagan's most outspoken liberal opponent. Nearly a month ago, Greenwald laid out "The case against Elana Kagan," and he has been hammering her ever since, largely over her views on executive power.

On Monday, Greenwald argued that Obama's pick was entirely predictable.

Nothing is a better fit for this White House than a blank slate, institution-loyal, seemingly principle-free careerist who spent the last 15 months as the Obama administration's lawyer vigorously defending every one of his assertions of extremely broad executive authority.

Meanwhile, at The American Prospect, Adam Serwer suggested that a 2005 letter co-signed by Kagan to Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) criticizing an amendment to restrict the ability of courts to review practices at Guantanamo Bay may signal more progressive views on executive authority. From an NPR report about the letter:

"To put this most pointedly," the letter said, "were the Graham amendment to become law, a person suspected of being a member of al-Qaeda could be arrested, transferred to Guantanamo, detained indefinitely ... subjected to inhumane treatment, tried before a military commission and sentenced to death without any express authorization from Congress and without review by any independent federal court. The American form of government was established precisely to prevent this kind of unreviewable exercise of power over the lives of individuals."

Serwer concludes:

Kagan's record is mostly blank. This letter is not a record. To borrow Goldstein's metaphor, this is a thin reed to hang an assessment of how a Justice Kagan might rule on such issues in the future. The fact that Kagan avoided commenting on many of the most controversial issues of her day makes her a gamble, although I suppose it means something that -- given her relative silence -- she chose to comment on this one. At the same time, one assumes that if these kinds of issues really did matter, she would have spoken up far more than she did.
You also gotta wonder ... given that much of the liberal criticism of Kagan has centered around this issue, why wasn't the White House passing this letter around?


National Review's Ed Whelan -- who found himself under attack over the weekend after using an insulting George Bernard Shaw quip calling a woman a prostitute in reference to Kagan's legal views -- argued that Kagan fails to meet her own standards for the high court:

Kagan may well have less experience relevant to the work of being a justice than any justice in the last five decades or more. In addition to zero judicial experience, she has only a few years of real-world legal experience. Further, notwithstanding all her years in academia, she has only a scant record of legal scholarship. Kagan flunks her own "threshold" test of the minimal qualifications needed for a Supreme Court nominee.

Noting Greenwald's criticisms,The Atlantic's Stuart Taylor Jr. writes that if confirmed, Kagan will likely push the court to the right, particularly on national security issues:

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. ...

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.

Hot Air's Ed Morrissey wondered if the Sunday night leak of Kagan's nomination suggests something about Obama's confidence in his nominee:

The late-Sunday leak gets the White House almost nothing it could have had with an early-Monday leak, and it missed the opportunity of pre-empting the Sunday talk shows' focus on the Times Square bomber and the Gulf oil spill, two narratives that don't play well for the administration. Instead, the news broke when most people weren't paying attention at all -- not quite as bad as a Friday afternoon document dump, since it would just make it in time for the Monday morning newspapers, but pretty close to the famous bad-news strategy every administration employs.


So is anyone happy about Kagan's nomination? The New Yorker's Jeffrey Toobin, who attended Harvard Law with Kagan, said the traits she shares with the president could serve her well:

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.

Libertarian Radley Balko suggested that Kagan will come down on the side of government on a range of issues:

She's a cerebral academic who fits Washington's definition of a centrist: She's likely defer to government on both civil liberties and regulatory and commerce issues. And though libertarians allegedly share ground with Republicans on fiscal and regulatory issues and with Democrats on civil liberties issues, neither party cares enough about those particular issues to put up a fight for them. Which is why Kagan sailed through her first confirmation hearings, and is widely predicted to sail through the hearings for her nomination to the Supreme Court.

By Matt DeLong  |  May 10, 2010; 1:04 PM ET
Categories:  44 The Obama Presidency  
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Next: Kagan nomination: Key senators, interest groups react


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Posted by: itkonlyyou52 | May 10, 2010 11:38 PM | Report abuse

Sen. Inhore objects because she is a female and a Jew. He objected to Sotomayer because she was a female and a Hispanic....enough said.

Posted by: Toughcookies | May 10, 2010 5:08 PM | Report abuse

More Ivy League. How about some real diversity?

Posted by: clarkesq | May 10, 2010 4:06 PM | Report abuse

Interesting!! If I read this right, The nomination may be one where POTUS may need help from the Republicans to secure her appointment.

The plot thickens.

Posted by: 15of18 | May 10, 2010 3:46 PM | Report abuse

Posted by: JakeD2 | May 10, 2010 3:45 PM | Report abuse

Are there any editors left at the Washington Post? The phrase is "homed in," not "honed in." Thank you.

Posted by: mmorris5301 | May 10, 2010 3:31 PM | Report abuse

We can do without the Ivy League. Look at the mess is has put us in and kept us in!!

Posted by: annnort | May 10, 2010 2:22 PM | Report abuse

Replacing Stevens with a centrist? Executive power like wars for no reason or so that no President like Jackson needs to ignore the court since they let them have all the power they need to continue hanging the country with worthless wars. I suppose once was enough for the Supreme Court to get the messge of unitary power.

Posted by: Wildthing1 | May 10, 2010 2:18 PM | Report abuse

Replacing Stevens with a centrist? Executive power like wars for no reason or so that no President like Jackson needs to ignore the court since they let them have all the power they need to continue hanging the country with worthless wars. I suppose once was enough for the Supreme Court to get the messge of unitary power.

Posted by: Wildthing1 | May 10, 2010 2:17 PM | Report abuse

Replacing Stevens with a centrist? Executive power like wars for no reason or so that no President like Jackson needs to ignore the court since they let them have all the power they need to continue hanging the country with worthless wars.

Posted by: Wildthing1 | May 10, 2010 2:16 PM | Report abuse

Oh, please! The much-beloved Republican-appointed former Chief Justice William Rehnquist had NO judicial experience when Nixon nominated him in the 1970's. The Republicans just want to find ANY reason to say NO.

SHAME ON YOU! She is a highly qualified woman with more experience (real-life and judicial) than current SC members.

Posted by: Woodie731 | May 10, 2010 2:11 PM | Report abuse

She's another Ivy Leaguer. From Yale, Princeton, Harvard.

Pretty impressive.

Posted by: TheBabeNemo | May 10, 2010 1:54 PM | Report abuse

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