Continuing the Kagan debate with Larry Lessig

As more illuminating evidence about the Supreme Court nominee emerges, the debate crystallizes.

By Glenn Greenwald

Published May 12, 2010 1:13PM (EDT)

(updated below)

I didn't necessarily intend to be so engulfed by the Elena Kagan debate -- speaking and writing about it every day, here and in other venues, to the exclusion of most other matters -- but I suppose that's inevitable once you become centrally identified with a position.  I hope and expect to turn to several other stories very shortly, but for the moment, there is still much to say and learn about the Kagan nomination.  The reality is that the Supreme Court (by design) has as much of an impact (and, in some instances, more) on vital political and legal questions as the White House and Congress do; many of its most consequential decisions have been by 5-4 rulings; and putting someone like Elena Kagan on the Court for the next 30-40 years could have extraordinary consequences.  It's worth paying substantial attention to this nomination.

Illustrating how little is known about her and how dubious is some of the praise that's issuing, review this new article examining several memos Kagan wrote while in the Clinton White House which express what the article calls "centrist" positions but which are, in reality, quite anathema to mainstream progressive and even Democratic Party opinion.  I was on Democracy Now this morning debating Kagan with Harvard Law Professor Larry Lessig; the debate was quite constructive and illuminating and, I think, demonstrates (as both Lessig and I agreed afterward) how sharply divergent and passionately held views can be aggressively debated in an illuminating and substantive way without obfuscating cable-news-type rancor:

Also worth watching is this shorter debate from last night between Law Professor Marjorie Cohn (a Kagan critic) and Kagan supporter Lawrence O'Donnell on Countdown, which focused to some extent on Kagan and executive power:


UPDATE:  This Sunday -- as Jake Tapper just noted -- I'll be on ABC's This Week roundtable along with George Will, Ed Gillespie, former Obama White House Counsel Greg Craig, and Helene Cooper of The New York Times.  There will be several topics discussed, but since the first guests are Senators Leahy and Sessions, the Chair and ranking member of the Senate Judiciary Committee, the Kagan nomination will obviously be one of those.

Along those lines, Greg Sargent had a very interesting find today:  past comments from Barack Obama regarding the need for Supreme Court nominees with no real record of beliefs to provide meaningful answers to questions during the confirmation process.  Dan Froomkin similarly argues that Kagan should be compelled to adhere to the demand she previously issued for other nominees:  that they provide specific, clear answers about their views of the law and the Constitution.


Glenn Greenwald

Follow Glenn Greenwald on Twitter: @ggreenwald.

MORE FROM Glenn GreenwaldFOLLOW ggreenwald

Related Topics ------------------------------------------

Elena Kagan Washington