Kagan's article dealt with domestic issues, not national security, and her actions as solicitor general do not show that she would take an expansive view of the president's national security powers. Kagan's article dealt with a president's power to direct administrative agencies and did not claim, as the Bush administration had, that the president had inherent power to act unilaterally on national security matters. Furthermore, Kagan's arguments in favor of the government's national security positions as solicitor general do not indicate that she would take an expansive view of the president's national security powers as a Supreme Court justice. As she has stated, her duty as solicitor general was to represent the federal government in court and defend federal laws whether or not she agreed with them. As a justice, her role would be to decide whether the federal government's actions are justified under the Constitution and federal laws.
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.
What are you basing that on? The administration has said nothing at all about triangulation, not even through leaks. -- one_bean
It certainly wasn't his strategy during the 2008 election as far as I can tell. What do you suggest changed electorally between November 08 and January 09 that would make him want to triangulate? -- one_bean
My feeling is that she is really more liberal than one can prove, which will help her get nominated so she can actually do liberal stuff. -- internet fraud detective
(By liberal I mean...agrees with me. Sorry for the lack of nuance.) -- internet fraud detective
It certainly does seem to be a surprising change from earlier statements as a U.S. representative and senator, but he had different constituencies in those roles.
Democrats will continue to be fucked in November.
Kagan told the Georgetown audience that the [Kennedy] had "a bit of a bad habit," namely that he asks advocates about cases that are not mentioned anywhere in the briefs for the case. Kennedy did just that in Citizens United when he asked Kagan whether something she had just said was "inconsistent with the whole line of cases that began with Thornhill v. Alabama and Coates v. Cincinnati." Perhaps many advocates know those cases, Kagan said, but "I at any rate did not." She added, "There was a look of panic on my face."
The Sotomayor confirmation process, I think, firmly established how various factions feel about empathizing with the "despised and disadvantaged." Now, the RNC wants to know, "Does Kagan Still View Constitution 'As Originally Drafted And Conceived' As 'Defective'?"
So, what do you imagine Kagan's answer to the question, "Does Kagan Still View Constitution 'As Originally Drafted And Conceived' As 'Defective'?" It surely won't be, "No, you're right. The framers got it absolutely right, excluding women and blacks from the rights of citizenship."
Question: Given your rhetoric about the Don’t Ask, Don’t Tell policy—you called it “a profound wrong—a moral injustice of the first order”—let me ask this basic question: Do you believe that there is a federal constitutional right to same-sex marriage?
Answer: There is no federal constitutional right to same-sex marriage.
fourcheesemac, why are you happy about it? What have you read that we haven't? -- gerryblog
I think undersold is Obama's desire to see his health care efforts upheld when the cases inevitably reach the high bench. Like FDR's New Deal, Obama (rightly in my view) thinks his legacy will live or die on the health care bill. -- T.D. Strange
Ideologically rigid "progressives" are no better than ideologically rigid right wingers. None of y'all are ever able to grok the concepts of compromise, pragmatism, or the challenge of actually exercising political power. Grow up. -- fourcheesemac
Kagan elaborated as well on the memorandum to Justice Marshall discussed above. “I indeed believe that my 22-year-old analysis, written for Justice Marshall, was deeply mistaken. It seems now utterly wrong to me to say that religious organizations generally should be precluded from receiving funds for providing the kinds of services contemplated by the Adolescent Family Life Act. I instead agree with the Bowen Court’s statement that ‘[t]he facially neutral projects authorized by the AFLA-including pregnancy testing, adoption counseling and referral services, prenatal and postnatal care, educational services, residential care, child care, consumer education, etc. are not themselves “specifically religious activities,” and they are not converted into such activities by the fact that they are carried out by organizations with religious affiliations.’ As that Court recognized, the use of a grant in a particular way by a particular religious organization might constitute a violation of the Establishment Clause – for example, if the organization used the grant to fund what the Court called ‘specifically religious activity.’ But I think it incorrect (or, as I more colorfully said at the hearing, ‘the dumbest thing I ever heard’) essentially to presume that a religious organization will use a grant of this kind in an impermissible manner.”
It's anything but surprising that President Obama has chosen Elena Kagan to replace John Paul Stevens on the Supreme Court. Nothing is a better fit for this White House than a blank slate, institution-loyal, seemingly principle-free careerist who spent the last 15 months as the Obama administration's lawyer vigorously defending every one of his assertions of extremely broad executive authority. The Obama administration is filled to the brim with exactly such individuals -- as is reflected by its actions and policies -- and this is just one more to add to the pile. The fact that she'll be replacing someone like John Paul Stevens and likely sitting on the Supreme Court for the next three decades or so makes it much more consequential than most, but it is not a departure from the standard Obama approach.
The New York Times this morning reports that "Mr. Obama effectively framed the choice so that he could seemingly take the middle road by picking Ms. Kagan, who correctly or not was viewed as ideologically between Judge Wood on the left and Judge Garland in the center." That's consummate Barack Obama. The Right appoints people like John Roberts and Sam Alito, with long and clear records of what they believe because they're eager to publicly defend their judicial philosophy and have the Court reflect their values. Beltway Democrats do the opposite: the last thing they want is to defend what progressives have always claimed is their worldview, either because they fear the debate or because they don't really believe those things, so the path that enables them to avoid confrontation of ideas is always the most attractive, even if it risks moving the Court to the Right.
David Brooks' column today really helped crystallize for me my qualms about Elena Kagan. Her life, so far as one can tell, is her career, and her career has been built by avoiding any tough or difficult political or moral positions, eschewing any rigorous intellectual debate in which she takes a clear stand one way or the other, pleasing every single authority figure she has encountered, and reveling in the approval of the First Class Car Acela Corridor elite.
For the court, a broker’s skillsThe White House is counting on Supreme Court nominee Elena Kagan to use her influential voice, intellectual heft, and knack for building consensus to help keep the high court from shifting to the political right, Democrats say.At Harvard, dean eased faculty strifeIf she is confirmed as a Supreme Court justice, Elena Kagan will be well prepared for the fractiousness that often marks the nation’s highest court, having brought peace and, some say, happiness to Harvard Law School.
The White House is counting on Supreme Court nominee Elena Kagan to use her influential voice, intellectual heft, and knack for building consensus to help keep the high court from shifting to the political right, Democrats say.
If she is confirmed as a Supreme Court justice, Elena Kagan will be well prepared for the fractiousness that often marks the nation’s highest court, having brought peace and, some say, happiness to Harvard Law School.
But the Obama administration was undeterred by this loss. They quickly appealed Judge Bates' ruling. As the NYT put it about that appeal: "The decision signaled that the administration was not backing down in its effort to maintain the power to imprison terrorism suspects for extended periods without judicial oversight." Today, a three-judge panel of the D.C. Circuit Court of Appeals adopted the Bush/Obama position, holding that even detainees abducted outside of Afghanistan and then shipped to Bagram have no right to contest the legitimacy of their detention in a U.S. federal court, because Boumediene does not apply to prisons located within war zones (such as Afghanistan).
One other point: this decision is likely to be appealed to the Supreme Court, which serves to further highlight how important the Kagan-for-Stevens replacement could be. If the Court were to accept the appeal, Kagan would be required to recuse herself (since it was her Solicitor General's office that argued the administration's position here), which means that a 4-4 ruling would be likely, thus leaving this appellate decision undisturbed. More broadly, though, if Kagan were as sympathetic to Obama's executive power claims as her colleagues in the Obama administration are, then her confirmation could easily convert decisions on these types of questions from a 5-4 victory (which is what Boumediene was, with Stevens in the majority) into a 5-4 defeat. Maybe we should try to find out what her views are before putting her on that Court for the next 40 years?
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