(udpated below - Update II)
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.
I’m glad this debate has been triggered. No matter what else happens between now and 2012, Obama’s choice to replace John Paul Stevens will be one of the most consequential decisions he makes. The Supreme Court can play a decisive role in virtually every issue I write about here, as well as most other key political questions. There’s no reason that those who advocated for Obama’s election — as I did — should adopt a passive posture of simply waiting quietly for Obama’s choice and then go forth and dutifully support his nominee. From the start, my objective has been to document all the available facts so that everyone can exercise their own independent, critical judgment about whether replacing Stevens with Kagan is remotely justifiable given long-standing progressive goals with regard to the Supreme Court (much the way conservatives exercised such judgment when Harriet Miers was selected by George Bush).
The most persuasive argument against Kagan is the one I’ve yet to make. I’ve spent substantial time learning as much as possible about 7th Circuit Court of Appeals Judge Diane Wood: reading countless cases and articles, interviewing (on the record) former clerks and colleagues, and comparing her jurisprudence to Justice Stevens’, and I intend to have that piece posted on Monday. Although Judge Wood is a bit more cautious and moderate a jurist than some of the candidates I’d prefer if it were my choice (such as Stanford Professor Pam Karlan), the available facts establish her as the virtually ideal person to replace Justice Stevens.
In contrast to the complete crapshoot (at best) progressives will be asked to accept if the blank slate known as Elena Kagan is the nominee, Wood has a 15-year judicial record to examine in order to know exactly what kind of Justice she will be, how similar she’d be to Justice Stevens, the brilliance she is uniformly perceived to possess, and especially, how adept she is at crafting opinions so as to attract the support of her right-wing colleagues on the very conservative 7th Circuit court. Indeed, the close, constructive and mutually respectful relationship she has forged with the conservative judges on that court is one of her most distinctive attributes. Given the pure and documented excellence of Judge Wood — who, by all accounts, was one of Obama’s finalists to replace Justice Souter last year — what could any progressive point to in order to justify Kagan’s selection instead?
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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:
[Kagan] 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 [And Dellinger must know that, contrary to what he told his readers, Justice Stevens' opinions in Chevron and Hampton have nothing to do with (let alone do they endorse) the robust executive power theories Kagan defended in that law review article; the former was about the level of judicial deference due administrative interpretations of statutes and the latter concerned the constitutionality of barring non-citizens from public employment].
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.
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Linda Monk’s Huffington Post defense of Kagan is really quite bizarre, but it vividly reveals the blind Leap of Faith progressives will be asked to take with a Kagan nomination. To her credit, I guess, Monk does not bother to pretend that Kagan has any sort of record that would allow us to know the substance of her judicial philosophy. Instead, she suggests that “perhaps” Kagan will be like Earl Warren, whose involvement in executive power abuses led him, once on the Court, to realize the dangers of such policies. Monk reasons: “Perhaps Elena Kagan’s experience crafting the Obama administration’s wartime response to terrorists will help her draw a clearer line in protecting the constitutional rights of individual citizens against a natural security leviathan.”
Sure, “perhaps” that will happen. Or “perhaps” it won’t. “Perhaps” Kagan’s defense of Bush’s indefinite detention powers at her confirmation hearing and of Obama’s executive power theories as Solicitor General reflects what she actually believes. Why take that chance? Monk tries to rationalize away Kagan’s lack of any real record by arguing: “the truth is, we don’t know what any justice will become once she joins the Court.” Aside from the fact that that rationale justifies choosing someone at random, that’s not really the truth. Conservatives knew exactly what they were getting when Bush selected John Roberts and Sam Alito because there was clear and abundant evidence of their judicial philosophy. Why wouldn’t progressives insist on a nominee — whether a judge, a law professor, a politician or a legal analyst — about whom the same can be said?
Monk’s defense focuses on Kagan’s reputed ability to ”help mold a cohesive majority at the Supreme Court,” as evidenced by Kagan’s having “tame[d] the fierce passions of warring conservative and liberal factions at Harvard Law.” But, as Obama’s “post-partisan” conduct reveals, there are two ways to forge a consensus with the Right: (1) to persuade them to support a compromised version of your views, or (2) to adopt what they want. Kagan’s much-praised record in winning the affection of the Right falls in the latter category — she hired numerous right-wing ideologues while at Harvard and embraced the right-wing legal approach to Terrorism at her confirmation hearing. Having a Justice who can win the affection of conservatives is an important goal — especially when it comes to replacing Justice Stevens — but not if that is accomplished by adopting their positions.
More important, there is a vast difference between (a) pleasing conservatives by hiring them for jobs and (b) crafting judicial opinions that can win the support of conservative judges for progressive legal positions. The fact that Kagan did the former does not remotely suggest she’d be capable of the latter, a much more complex and challenging task (indeed, there’s evidence that she has had a difficult time with conservative Justices on the Court as Solicitor General). If, as Monk argues, the ability to persuade conservative judges to support progressive legal opinions is an importat factor in choosing the next Justice — and I agree it is — shouldn’t progressives strongly prefer someone who has repeatedly proven she can do that (Diane Wood) to someone who has never done anything remotely like it (Kagan)?
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Tom Goldstein’s rant against Kagan critics reads like some sort of a caricature of a David Broder column circa 2002: Kagan critics on both the Right and Left are fringe, unSerious radicals who are the type of unhinged bloggers the Internet spits up, in contrast to those (like Goldstein) who are the Serious, Sober Centrist Adults — or, as Ed Whelan more aptly put it, the ”Objective Centrist Poseur.” Goldstein says all of this while apparently oblivious to the irony that he himself is writing on the Internet at a place called SCOTUSblog.
There’s not much to say about Goldstein’s attack because it’s so devoid of substance. He says my critiques of Kagan’s record can be dismissed because I’m “writing from the progressive fringe,” but never identifies a single “fringe” position I hold. He also claims I oppose Kagan’s nomination because “almost every potential nominee would be insufficiently left-leaning for [my] taste,” an accusation that is obviously irreconcilable with my immediate and vigorous support for Sonia Sotomayor’s nomination and with my lavish praise of Diane Wood. In fact, several of the main points I made against Kagan quoted from Goldstein’s gushing defense of her:
Are there risks for the left in a Kagan nomination? God yes. The last nominee about whose views we knew so little was David Souter. . . . I don’t know anyone who has had a conversation with her in which she expressed a personal conviction on a question of constitutional law in the past decade.
But this is how trite, ad hominem, pseudo-centrist smears are always conducted: with adolescent name-calling (“fringe wing-nuttery”) used as a crutch to avoid substantive discussion — playground insults ironically employed by those pompously proclaiming themselves to be the only Serious Adults in the room.
But there are several points worth highlighting about Goldstein generally. He has drawn attention to himself by claiming to be an objective, non-ideological analyst of Supreme Court nominees, but it always takes the form — as it has here — of gushing sycophantic praise for the nominees, scoffing at criticisms voiced, and disparaging critics as unhinged ideologues. He has done exactly the same thing with the nominations of John Roberts, Sam Alito, Sotomayor and now Kagan: these are excellent and honorable people who deserve to be on the Court and all criticisms of them are not just invalid but disgraceful. That’s what he does: you wind him up and he recites lavish praise for every nominee.
Critically, Goldstein’s livelihood and career as a lawyer — one that brought him a lucrative partnership at Akin, Gump after he left the small firm he founded to join it — has depended and still depends upon constant appearances before the Supreme Court. As The New Republic put it, the firm he founded was “the world’s only law firm devoted exclusively to Supreme Court litigation.” Goldstein’s primary selling point as a lawyer is that he frequently appears in Oral Argument before the Supreme Court; that’s what his clients hire him to do.
As a result, is it really surprising that he invariably takes the lead role in vocally defending the honor, integrity and qualifications of every single Supreme Court nominee while attacking their critics? What could possibly be better for Goldstein’s career as a Supreme Court litigator than being the dutiful defender of every one of the Justices during their nomination process, while relentlessly smearing their critics? SCOTUSblog is an excellent resource for reading about Court proceedings and decisions. But this conflict of interest between Goldstein’s legal practice and his purported role as objective analyst of Supreme Court nominees is so glaring that it ought to disqualify him as being some sort of authoritative source on these individuals. Of course he’s going to say that each nominee is special and honorable and that all critics are misguided extremists. Why would he ever say anything else? Why would he ever criticize a potential Supreme Court nominee on whose good graces his career success depends?
Goldstein’s steadfast defense of Kagan is particularly questionable given his prior relationship to her, which he has failed to disclose, at least in his recent pieces on her. When Goldstein was attempting to build his small firm into one that could sustain an exclusive Supreme Court practice, he received vital assistance in terms of credibility and support from then-Dean Kagan, who created a program at Harvard to enable law students to work on Goldstein’s cases for free. He was also hired during Dean Kagan’s tenure to teach litigation at Harvard despite no prior connections to that school (his law degree is from American University). These aren’t the world’s largest conflicts, but they should be disclosed, and they do suggest he’s something other than an objective defender of Elena Kagan. Either way, if he wants to defend Kagan, he should do more than spew Broderian platitudes at everyone who raises substantive questions about her nomination and fitness for the Court.
I’m still waiting for someone, anywhere, to point to something about Elena Kagan that demonstrates commitment to anything other than her career ambitions and institutional loyalties. It’s very understandable why a President would want someone like her on the Court during his time in office, but that’s a far cry from making a case as to why progressives should consider her an acceptable choice to remain on the Court for what likely will be decades.
UPDATE: I neglected to mention one of the most incoherent (though important) aspects of Goldstein’s response — where he concedes that Kagan-for-Stevens will move the Court to the Right but then criticizes me for saying so. Fortunately, a commenter here did an excellent job of highlighting that point.
UPDATE II: Last May, The New York Times‘ Charlie Savage wrote an excellent article about the selection of the next Justice and how “the effect on presidential power could be pivotal.” He specifically and in detail compared Kagan — with her “history of advocating for presidential powers in domestic matters, along with a mixed record of statements on counterterrorism issues” and her view that “the president had the authority to indefinitely detain, without a trial, someone suspected of helping to finance Al Qaeda” – and Wood, who “expressed doubts about claims of sweeping executive powers in national security matters” and even about military commissions, and who also, “in a 2003 essay,  warned that steps proposed in the fight against terrorism, like diminishing privacy to facilitate executive surveillance, posed a threat to the rule of law.“
I’ll have much more on Monday on the vastly superior record of Wood to Kagan on these and so many other issues, but standing alone, how any progressive could read Savage’s article and support the choice of Kagan is completely mystifying.