The Disappointing Kagan Pick

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The Progressive

The Disappointing Kagan Pick

I'm troubled by Obama's nomination of Elena Kagan to the Supreme Court.

I'm troubled not because she has no prior experience as a judge. Obama's right that we need more than cloistered judges on the top bench.

But I wish she had more experience outside of the University of Chicago Law School and Harvard Law School, outside of the Clinton White House and the Obama White House.

These aren't the widest of worldly experiences.

And her time in the White House is especially troubling.

I'd much prefer having a non-judge who was a former member of Congress, for instance, someone who had an intense personal appreciation for the other branch of government.

Unfortunately, Kagan's government experience is with the Executive Branch and with upholding its powers. That's what she did as Solicitor General, remember. She went to bat for the Presidency.

And this President, like George W., has embraced a vast expansion of Executive Powers. So Kagan or her deputies have repeatedly gone into court to invoke the undemocratic doctrine of state secrets. And they've gone into court to assert the right to hold any person, captured by the military or the CIA or by some foreign power anywhere in the world, for an indefinite period of time at Bagram Air Base in Afghanistan-without recourse to any due process rights whatsoever.

In Maqaleh v. Gates, she told a federal court: "When it comes to military facilities, unlike Guantanamo, that are truly abroad-particularly those halfway across the globe in an active war zone-courts in the United States exceed their role by second-guessing the political branches about the reach of habeas jurisdiction."

It's no surprise that Kagan disdains due process for detainees. At her confirmation hearings as Solicitor General, Kagan testified that she had no problem with that.

Well, I do. And Justice John Paul Stevens sure did. And the Constitution does. And the Geneva Conventions do.

It's more than a little too bad that she doesn't. And that Obama doesn't.

Stevens, by the way, brought Kennedy along and assigned him the role of writing the decision in the Boumediene case that limited the Executive Branch's ability to deny due process to detainees.

Wrote Kennedy: "The test for determining the scope of the habeas corpus provision must not be subject to manipulation by those whose power it is designed to restrain."

So, on this crucial issue of executive power, Kagan is to the right of Kennedy!

I also doubt that Kagan will be better than Stevens in influencing Kennedy, much less the justices on his right. Like Kennedy, Stevens was appointed by a Republican, and Stevens had 12 years on the Court before Kennedy, his junior, came along.

Still, Obama hailed her "skill as a consensus-builder." But what the court needs now is not a "consensus-builder," since on many issues there is no basis for consensus. There is a vast ideological gulf. Instead, it needs someone who can advocate as aggressively for a progressive jurisprudence as Roberts, Alito, Scalia, and Thomas advocate for a reactionary one.

The Supreme Court is not Harvard Law School. And Kagan will not be the dean. She'll be the junior member. To the extent that she is determined to be a consensus builder, the conservatives are more likely to drag her their way than she is likely to drag them in a progressive direction.

More's the pity.

Matthew Rothschild

Matthew Rothschild is senior editor of The Progressive magazine.

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