(updated below - Update II [responses from Dellinger and others] - Update III [response to Lessig])
It is far from clear who Obama will chose to replace John Paul Stevens on the Supreme Court, but Elena Kagan, his current Solicitor General and former Dean of Harvard Law School, is on every list of the most likely replacements. Tom Goldstein of SCOTUSblog has declared her "the prohibitive front-runner" and predicts: "On October 4, 2010, Elena Kagan Will Ask Her First Question As A Supreme Court Justice." The New Yorker's Jeffrey Toobin made the same prediction.
The prospect that Stevens will be replaced by Elena Kagan has led to the growing perception that Barack Obama will actually take a Supreme Court dominated by Justices Scalia (Reagan), Thomas (Bush 41), Roberts (Bush 43), Alito (Bush 43) and Kennedy (Reagan) and move it further to the Right. Joe Lieberman went on Fox News this weekend to celebrate the prospect that "President Obama may nominate someone in fact who makes the Court slightly less liberal," while The Washington Post's Ruth Marcus predicted: "The court that convenes on the first Monday in October is apt to be more conservative than the one we have now." Last Friday, I made the same argument: that replacing Stevens with Kagan risks moving the Court to the Right, perhaps substantially to the Right (by "the Right," I mean: closer to the Bush/Cheney vision of Government and the Thomas/Scalia approach to executive power and law).
Consider how amazing it is that such a prospect is even possible. Democrats around the country worked extremely hard to elect a Democratic President, a huge majority in the House, and 59 Democratic Senators -- only to watch as the Supreme Court is moved further to the Right? Even for those who struggle to find good reasons to vote for Democrats, the prospect of a better Supreme Court remains a significant motive (the day after Obama's election, I wrote that everyone who believed in the Constitution and basic civil liberties should be happy at the result due to the numerous Supreme Court appointments Obama would likely make, even if for no other reason).
There will, of course, be some Democrats who will be convinced that any nominee Obama chooses is the right one by virtue of being Obama's choice. But for those who want to make an informed, rational judgment, it's worthwhile to know her record. I've tried here to subject that record to as comprehensive and objective an assessment as possible. And now is the time to do this, because if Kagan is nominated, it's virtually certain that she will be confirmed. There will be more than enough Republicans joining with the vast majority of Democrats to confirm her; no proposal ever loses in Washington for being insufficiently progressive (when is the last time such a thing happened?). If a Kagan nomination is to be stopped, it can only happen before her nomination is announced by Obama, not after.
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Kagan's lack of a record
One of the difficulties in assessing Kagan's judicial philosophy and view of the Constitution is that direct evidence is extremely sparse. That's not only because she's never been a judge, but also because (a) her academic career is surprisingly and disturbingly devoid of writings or speeches on most key legal and Constitutional controversies, and (b) she has spent the last year as Obama's Solicitor General, where (like any lawyer) she was obligated to defend the administration's policies regardless of whether she agreed with them. As Goldstein wrote at SCOTUSblog: "it seems entirely possible that Elena Kagan does not really have a fixed and uniform view of how to judge and to interpret the Constitution."
As I've previously documented and examine further below, the evidence that is available strongly suggests that a Kagan-for-Stevens substitution would move the Court to the Right in critical areas. But Kagan's lack of a real record on these vital questions, by itself, should cause progressives to oppose her nomination. That's true for two reasons:
First, given that there are so many excellent candidates who have a long, clear commitment to a progressive judicial philosophy, why would Obama possibly select someone who -- at best -- is a huge question mark, and who could easily end up as the Democrats' version of the Bush-41-appointed David Souter, i.e., someone about whom little is known and ends up for decades embracing a judicial philosophy that is the exact opposite of the one the President's party supports? As Goldstein wrote of Kagan:
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.
Why would any progressive possibly want to take risks like that given how large the stakes are, and given how many other excellent, viable candidates Obama can choose who have a long and clear record?
This was exactly the argument which conservatives such as David Frum made to force George Bush to withdraw Harriet Miers as his replacement for Sandra Day O'Connor and instead choose Sam Alito. As Frum put it on PBS during the fight over Miers:
Stakes are so enormous in this seat. This is something, as Bill Kristol said, the conservatives have worked for, for a long time. . . . I mean she has been a lawyer for more than three decades. In that time she has never found it necessary to express herself on any of the great issues of the day. . . Part of what isn't good enough is for the president to say -- although there are lots of conservatives of incredible distinction who have written and published, where the world can know what they think -- "I have a secret, I know something and nobody else does. And I'm going to go with my personal knowledge."
Republicans have been disappointed with that kind of knowledge often before, and although they trust and support this president, he is asking too much.
[It's ironic that the anti-Miers case was grounded in conservatives' refusal to place too much faith and trust in their President's judgment. Can anyone envision Democrats mounting a serious and sustained campaign against Obama's Supreme Court nominee of the type mounted against Bush by conservatives, whom progressives like to accuse of blind leader/party loyalty?]
Frum's anti-Miers argument prevailed, and conservatives got what they wanted: Sam Alito, someone with a long record of advocacy for their judicial philosophy who they knew would be the kind of Justice they wanted for decades to come. Part of the conservative case against Miers (i.e., that she lacked intellectual heft) is plainly inapplicable to the unquestionably intelligent Kagan, but the bulk of it is directly applicable: why should progressives who care about the Supreme Court possibly accept someone whose judicial and Constitutional philosophy can barely be discerned?
When it came time to replace David Souter, Sonia Sotomayor was far from the ideal nominee for many progressives, yet virtually all supported her nomination (as did I, vigorously) because it was clear that she would be essentially the same kind of Justice as Souter, and would thus maintain the Court's balance. By contrast, conservatives rightly perceived that replacing O'Connor was a once-in-a-generation opportunity to shape the Court to their beliefs about judicial philosophy, and they thus refused to accept a nominee about whom so little was known.
Under the circumstances that prevail now, why would progressives possibly demand any less? After all, Obama is now replacing the Justice who has become the leader of the "liberal" wing of the Supreme Court (accepting the dubious premise that there is even is such a thing as a "liberal" wing). As Scott Lemieux notes, this is the seat which, since 1916, has been held by only three Justices, three of the great progressives Justices in history -- Louis Brandeis, William O. Douglas, and Stevens. Given that, why wouldn't progressives insist on a nominee whom they know will approach legal questions at least as progressively as Stevens did -- or, dare to dream, have a nominee be more progressive than the Justice being replaced, something that hasn't happened literally in decades? Acquiescing to a Kagan nomination would mean accepting someone who could easily move well to the Right of Stevens, thus taking the whole Supreme Court with her.
Second, I believe Kagan's absolute silence over the past decade on the most intense Constitutional controversies speaks very poorly of her. Many progressives argued (and I certainly agree) that the Bush/Cheney governing template was not merely wrong, but a grave threat to our political system and the rule of law. It's not hyperbole to say that it spawned a profound Constitutional crisis.
Recognizing the severity of this radicalism, numerous legal academicians used their platforms -- and created new ones -- to protest vocally and relentlessly. Former OLC official and Georgetown Law Professor Marty Lederman blogged on a virtually daily basis about the extremism and lawlessness of Bush's policies. Former Acting OLC Chief and Indiana University Law Professor Dawn Johnsen wrote article after article decrying the lawlessness and demanding greater public outrage. Georgetown Law Professor Neal Katyal -- Kagan's not-at-all-progressive Deputy Solicitor General -- was so appalled by Bush/Cheney extremism that he spent a huge number of hours working pro bono representing Osama bin Laden's driver all the way to the U.S. Supreme Court, where he succeeded in having Bush's military commissions declared illegal and the Geneva Conventions held applicable to all detainees -- in a decision written by Justice Stevens (and, like Johnsen and Lederman, Katyal has a long record of written analysis on a whole litany of key legal controversies, including vehement opposition to many aspects of the Bush/Cheney assault).
Where was Elena Kagan during all of this? Why is it seemingly impossible to find even a single utterance from her during the last decade regarding the radical theories of executive power the Bush administration invoked to commit grave crimes and other abuses? It's possible that she said something at some point, but many hours of research (and public inquiries) have revealed nothing -- other than when she endorsed the core Bush template during her Solicitor General confirmation hearing. As Adam Liptak put it in The New York Times when she was nominated last year for Solicitor General: "she has provided few clues about where she stands on the great legal issues of the day, notably the Bush administration’s broad assertions of unilateral executive power in areas like detention, surveillance, interrogation and rendition." The Boston Globe similarly pointed out that she "has had little to say about the legal and political issues related to presidential power that have emerged as a result of Bush's efforts to combat terrorism."
Given the severity of the crisis posed by Bush/Cheney lawlessness, what justifies someone with Kagan's platform -- Dean of Harvard Law School and former Clinton White House lawyer -- remaining utterly silent in the face of that assault? Even if one believes that a Law School Dean should generally be attentive to institution-building, didn't the severity of the legal crisis spawned by Bush and Cheney merit serious opposition from those in a position to voice it? Before any progressive considers supporting her nomination to the Court, shouldn't they be able to point to some evidence, somewhere, that she opposed the core claims used to prop up the Bush/Cheney assault on the Constitution and the rule of law?
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The sparse record of Kagan's views
Beyond the disturbing risks posed by Kagan's strange silence on most key legal questions, there are serious red flags raised by what little there is to examine in her record. I've written twice before about that record -- here (last paragraph) and here -- and won't repeat those points. Among the most disturbing aspects is her testimony during her Solicitor General confirmation hearing, where she agreed wholeheartedly with Lindsey Graham about the rightness of the core Bush/Cheney Terrorism template: namely, that the entire world is a "battlefield," that "war" is the proper legal framework for analyzing all matters relating to Terrorism, and the Government can therefore indefinitely detain anyone captured on that "battlefield" (i.e., anywhere in the world without geographical limits) who is accused (but not proven) to be an "enemy combatant."
Those views, along with her steadfast work as Solicitor General defending the Bush/Cheney approach to executive power, have caused even the farthest Right elements -- from Bill Kristol to former Bush OLC lawyer Ed Whelan -- to praise her rather lavishly. Contrast all of that with Justice Stevens' unbroken record of opposing Bush's sweeping claims of executive power every chance he got, at times even more vigorously than the rest of the Court's "liberal wing," and the risks of a Kagan nomination are self-evident.
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.
Still, the questions she was addressing were the crux of the debate back then over the proper limits of executive authority, and the view she advocated was clearly one that advocated far more executive power than had been previously accepted. Kagan's 2001 law review article is what led to this from The Boston Globe when Kagan was nominated for Solicitor General:
"She is certainly a fan of presidential power," said William F. West, a professor who specializes in federal administration at the Bush School of Government and Public Service at Texas A&M.
Similarly -- and very revealingly -- even the moderate Neal Katyal, now Kagan's Deputy, emphatically criticized Kagan's theories in that law review article as executive overreach and even linked them to the Bush/Cheney executive power seizures. Katyal wrote in a June, 2006 article in The Yale Law Journal (.pdf; emphasis added):
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. Kagan, herself a former political appointee, lauded the President's ability to trump bureaucracy. Anticipating the claims of the current administration, Kagan argued that the President's ability to overrule bureaucrats "energize[s] regulatory policy" because only "the President has the ability to effect comprehensive, coherent change in administrative policymaking" . . . .
Assaulted by political forces, the modern agency is a stew of presidential loyalists and relatively powerless career officials. To this political assault comes an academic one as well, with luminaries such as Elena Kagan celebrating presidential administration an unitary executivists explaining why such theories are part of our constitutional design. This vision may work in eras of divided government, but it fails to control power the rest of the time.
As Katyal noted, Kagan relied upon the warning from Alexander Hamilton about a "feeble executive" that was beloved by Bush/Cheney legal theorists, and she hailed "strong, executive vigor." On the legal spectrum, Kagan clearly sits on the end of strong assertions of executive authority -- perhaps on the far end, almost certainly much further than where Stevens falls. It's perhaps unsurprising that a President -- such as Barack Obama -- would want someone on the Supreme Court who is quite deferential to executive authority. But given that so many of the most important legal and Constitutional disputes center on the proper limits of executive power (including ones that remain to be decided from the Bush era), and that Kagan and her rulings will likely long outlast an Obama presidency (i.e., any pro-executive-power decisions she issues will apply to future George Bushes and Dick Cheneys), shouldn't these pro-executive-power views, by themselves, prompt serious reservations (if not outright opposition) among progressives?
Kagan's record on social issues will likely be perfectly satisfactory, even pleasing, to most progressives. She is, by all appearances, solidly pro-choice and in favor of gay equality. But even on domestic issues, serious questions have been raised about how progressive her views actually are, as exemplified by this New York Times profile from Eric Lichtblau last year examining Kagan's prospects as a Supreme Court nominee:
"I want a Brennan or a Marshall, someone clearly on the liberal side," said Michael Ratner, president of the Center for Constitutional Rights, referring to liberal court icons William J. Brennan and Thurgood Marshall.
"I don’t think Kagan is at that end of the liberal spectrum," said Mr. Ratner, whose nonprofit legal group has helped lead the push for greater legal protections for prisoners at Guantánamo Bay. "Why they would put someone in who might not be a liberal anchor for the court is really bothersome, and I don’t see Kagan playing that role" . . . ..
Ms. Kagan first gained high-level notice as an aide in the Clinton White House, first as an associate counsel and then as deputy director of the Domestic Policy Council, working on issues like tobacco regulation, welfare reform, education, hate crimes and affirmative action.
"There were some important issues on which Elena took centrist or even center-right positions, but it was never clear whether she was pressing her own views or merely carrying water for her boss on the Domestic Policy Council, Bruce Reed," said Christopher Edley Jr., who worked with Ms. Kagan at the White House and is now dean of the law school at the University of California, Berkeley.
And even on the issues where she has been impressive -- such as her refusal to allow military recruiters to recruit at Harvard Law School due to their anti-gay discrimination -- her record is ultimately rather muddled. After preening around for years justifying her ban on military recruiters by decrying the military's ban on gays as "a profound wrong -- a moral injustice of the first order," she quickly reversed that policy and allowed military recruiters onto campus after the Federal Government threatened to withhold several hundred million dollars in funds to Harvard (out of a $60 billion endowment). One can reasonably argue that her obligation as Dean was to secure that funding for the school, but one can also reasonably question what it says about a person's character when they are willing to flamboyantly fight against "profound wrongs" and "moral injustices of the first order" -- only as long as there is no cost involved.
What makes the prospect of a Kagan nomination so disappointing is that there are so many superior alternatives -- from the moderately liberal and brilliant 7th Circuit Judge Diane Wood and former Georgia Supreme Court Chief Justice Leah Ward Sears to the genuinely liberal Harold Koh (former Yale Law School Dean and current State Department counselor) and Stanford Law Professor Pam Karlan. If progressives aren't willing to fight Obama for the Supreme Court, what are they willing to fight him for?
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Most of the research presented here was done by Daniel Novack, a second-year law student at NYU School of Law. Novack, who works with me on many posts I write, also contributed several substantive points.
UPDATE: Two related notes:
(1) I was on Democracy Now this morning discussing Elena Kagan, as well as the (related) death of Dawn Johnsen's nomination as OLC Chief. That discussion can be viewed here.
(2) Scott Lemieux argues in The American Prospect for a Stevens replacement in the Brennan-Marshall mode and notes: "Elena Kagan, while an attractive candidate in some respects, has a record on civil liberties and executive power that strongly suggests she would not be a liberal in this mold either. This would be bad for the development of progressive constitutional values."
UPDATE II: Several commentators -- including former Clinton Solicitor General Walter Dellinger, legal analyst and author Linda Monk, and Akin, Gump lawyer Tom Goldstein of SCOTUSblog -- have responded to what I've written here. My reply to them is here.
UPDATE III: My response to Larry Lessig's defense of Kagan is here.