I don’t know what, if anything, her stint at Harvard Law implies about her views on race (some background from 538), but I think that’s mostly a red herring. However, I am nervous about her views on government power, and you should be, too:
Solicitor General Elena Kagan will be President Obama’s second Supreme Court nominee. The emerging conventional wisdom is that Kagan, a rare nominee for the high court who hasn’t been a judge, is a very smart blank slate. On at least one category of issues that Kagan will face — the intersection of national security and law during a time of war — that conventional wisdom looks correct. But there’s a proxy for that set of issues, however inexact, that offers a few clues in advance of her confirmation hearings: Kagan’s deference to executive power.
No one has chronicled Kagan’s embrace of the executive more assiduously than Glenn Greenwald, who’s appalled that Obama would pick someone with such a record. Given her relatively thin paper trail, one of the primary pieces of evidence for her perspective is her 2009 nomination hearing for the solicitor generalship, in which she expressed eagerness to bless Sen. Lindsey Graham’s (R-S.C.) perspective that the president possesses broad wartime authorities to detain enemy combatants. (“No daylight” was how The New York Times assessed the exchange between the two.)
That assent appears to flow from a broader perspective. Charlie Savage of the Times found this weekend that Kagan, the dean of Harvard Law School from 2003 to 2009, was the tardiest and least forceful of Obama’s Supreme Court shortlist to criticize the Bush administration’s expansive assertions of executive wartime powers.
The danger of a “blank slate” (not the case here, anyway; her opinions just aren’t public knowledge) is that it’s easy to believe the best about Kagan’s politics. Nominating someone with a thin record to survive the nomination process would be fine if the game ended after “Hooray, Republicans couldn’t derail your confirmation! Here’s a black robe!” But that’s not what happens, and a cheerleader for an expansive view of government power and a strong unitary executive sitting on the Supreme Court for the next few decades is pretty unappealing. As SCOTUSblog points out, “At age 50, [Kagan] may serve for a quarter century or more, which would likely make her the President’s longest lasting legacy.” It’s a bit hyperbolic–Presidents are associated with their policies and actions more than their Supreme Court picks, but the general point (“This is really important, and will have extraordinarily long-lasting consequences”) is true. Anyway, we’ll have to see what happens.
In the meantime, some reading:
- “9750 Words on Elena Kagan“
- The ten biggest issues Kagan will face
- Bonus! John Paul Stevens, former “middle-of-the-road” conservative.
Update: That 9750-word SCOTUSblog post argues that fear over Kagan’s deference to executive power is based on incomplete knowledge and misunderstands the points she was making. Fair enough. I’d love to be completely, wildly wrong about this.