The White House Seeks Out Kagan Defenders

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
cliche-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?

* * * * *

Dellinger

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.

* * * * *

Monk

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)?

* * * * *

Goldstein

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 Republicput 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.