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The Kagan Wars

By Big Tent Democrat

A healthy honest to goodness substantive debate has erupted over the nomination of Elena Kagan. For once, the debate of the moment is between what I would call Left progressives and Center progressives. (The Republicans are likely to oppose any Obama nominee en masse, so they are irrrelevant to the substance of the debate, but perhaps not to the process (more on that later.))

For the first time in a long time, I watched Keith Olbermann's Countdown and Rachel Maddow's show to watch the debate. Olbermann had Jonathan Turley on (not my favorite, but he was interesting last night) and Ezra Klein on the politics of the nomination (Ezra was pretty good too.) Maddow had the more interesting segment, with Glenn Greenwald and Larry Lessig. Here is the Maddow segment:

More . . .

I think Glenn has some legitimate grievances about Lessig's mischaracterizations of Glenn's argument on Kagan's views on preventive detention. That said, I think Kagan has some legitimate grievances about Glenn's characterizations of Kagan's position on preventive detention. I have written on the issue. And here is my beef with Glenn's characterizations. Glenn said:

[Greenwald], Democracy Now, April 13: "[Kagan] expressed very robust defenses of executive power, including the power of the president to indefinitely detain anybody around the world as an enemy combatant, based on the Bush-Cheney theory that the entire world is a battlefield and the US is waging a worldwide war."

(Emphasis supplied.) This gives short shrift to what Kagan actually agreed to. From Kagan's SG confirmation hearing:

GRAHAM: [. . .] Under law of armed conflict, as I understand it, under the Geneva Convention, Article V says, if there's a dispute about status, what you're entitled to is an independent, neutral decision maker. And in most wars, that can be a battlefield determination by a single officer. But because this is a war [. . .] that will not end [. . .] with a ceremony on the USS Missouri, there will be no defined end, I am all for giving more due process.

But the point [Sen. Feinstein is] making I think is an important point. You cannot detain somebody indefinitely under criminal law. They have to have a trial. But under military law, if you're part of the enemy force, there is no requirement to let them go and go back to the war and kill your own troops. Do you agree that makes sense?

KAGAN: I think it makes sense. And I think that you're correct that that is the law.

GRAHAM: So America needs to get ready for this proposition that some people are going to be detained as enemy combatants, not criminals. And there will be a process to determine whether or not they should be let go, based on the view that we're at war, and it would be foolish to release somebody from captivity that's a committed warrior to our nation's destruction.

Now, the point we have to make with the world, would you agree, Dean Kagan, is that the determination that led to the fact that you're an enemy combatant has to be transparent?

KAGAN: It does, indeed.

GRAHAM: It has to have substantial due process.

KAGAN: It does, indeed.

GRAHAM: And it should have an independent judiciary involved in making that decision beyond the executive branch. Do you agree with that?

KAGAN: Absolutely.

GRAHAM: So we can go tell the world that this person is being held off the battlefield, not because one person says so, but because there's a process that led to that determination where you have an independent judiciary involved. Do you think that's important for the nation to make sure we have that kind of process?

KAGAN: I do, Senator.

(Emphasis supplied.) Glenn simply does not acknowledge that Kagan has accepted a view of enemy combatant detention that requires transparency, due process, judicial review and compliance with the Geneva Conventions. This is a disagreement of longstanding have had with Glenn. See, e.g, my post Preventive Detention and Prisoners of War.

That said, Lessig "flatly misstates the case" of Kagan's views on this issue, pretending that Kagan was not stating her views but rather stating what the law is. This is nonsense. But, as I have argued, Kagan's view is not only defensible, it is right.

Similarly I think very highly of Kagan's article on the unitary Executive and find Greenwald's criticisms of it wrongheaded and unconvincing. Indeed, it is my view that Kagan's 2001 Harvard Law Review article is the most compelling evidence of her brilliance and progressive bonafides.

On the Countdown program, Professor Turley discussed Kagan's writings on the First Amendment and expressed concern about the views expressed therein. I have not read them and need to.

But, based on what I have read of Kagan's writings, nothing I have seen is in any way disqualfying. But I have not seen enough. Kagan's public views are simply too sparse to make a considered judgment. We need to hear more from Kagan, on the record.

That is why my main focus has been on holding Kagan to the "Kagan Standard," based on the views she expressed in a 1995 article:

The Senate confirmation hearings for the Supreme Court have become "a vapid and hollow charade," [Kagan, then] a Chicago law professor complained, because the nominees are not forced to say what they think about disputed issues such as abortion, affirmative action and privacy.

It is "an embarrassment," she said, that "senators today do not insist that any nominee reveal what kind of Justice she would make, by disclosing her views on important legal issues." Justice Clarence Thomas won confirmation, she said, even "after his substantive testimony had become a national laughingstock."

Kagan was right in 1995. That is why the position her group is now taking is simply unacceptable:

The White House Monday said that Supreme Court nominee won’t follow her own advice from 1995 in answering questions on specific legal cases or issues, supporting Kagan’s flip flop on the issue that she first made a year ago.

[. . . D]uring a briefing with reporters in the White House, Ron Klain, a top legal adviser to Vice President Joe Biden who played a key role in helping President Obama choose Kagan, said that she no longer holds this opinion. [. . .] “She was asked about it and said that both the passage of time and her perspective as a nominee had given her a new appreciation and respect for the difficulty of being a nominee, and the need to answer questions carefully,” Klain said, prompting laughter from a few reporters.

It is laughable. And unacceptable. I hope the Republicans make a stink about it. I have no hope that Dems will.

Speaking for me only

Full post as published by TalkLeft on May 11, 2010 (boomark / email).