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Elena Kagan

By Jack M. Balkin

I am incapable of detached objectivity regarding Elena Kagan. Not only was she a student of mine long ago at Princeton; far more importantly, she was consistently kind to me as Dean of the Harvard Law School and is responsible for the fact that I have been privileged to teach there over the past seven years when on leave from my regular duties at the University of Texas Law School. I think the world of her and think she will make an excellent Justice.

I do want to pick up on Mark Tushnet's post, regarding her article on Presidential Administration. I will take the liberty of quoting sometime Balkinization-contributor Scott Horton (who now blogs, of course, for Harpers), because I think he gets the article just right.

.... several of her works deal with presidential power, particularly her article ?Presidential Administration? . This is a beautiful, extremely perceptive work, closely observed, brilliantly reasoned, and cautious.(italics mine) In it, Kagan notes the increase of presidential power as Congress builds the administrative and regulatory state. The powers that Congress vests in regulatory agencies are necessarily assumed and controlled by the president. Kagan writes as a detached observer, yet there is much to suggest her admiration for the evolution of the strong presidency in the period after World War II. Her career choices, often pushing back her academic career to accept appointments in Democratic administrations, reflect an attitude of engagement with it. All of this leads to the assumption that as a Supreme Court justice, Elena Kagan will be no enemy to the powers of the executive. As my readers know, I am not sympathetic to this attitude. But I am impressed with Kagan?s powers of analysis and presentation just the same. My suspicion?and it?s only a suspicion?is that Kagan is a liberal in the sense of the Kennedy and Johnson Administrations, someone who has faith in the power of the executive to shape a better and more just state. She pays lip service to the limitations on executive authority contained in the Constitution, but she?s generally in the thrall of executive power.

As already noted, I think this is correct, including the description of Kagan's article as "brilliant." I think it is one of the most illuminating articles I've read in years about the actual operations of government, quite unlike, incidentally, her formidable article on the First Amendment, which is superb case-crunching, but largely of interest only to lawyers who take Supreme Court doctrines really seriously. Her "Presidential Administration" article, on the other hand, should interest lawyers, political scientists, historians, and,ultimately, ambitious general readers.

I would add only one comment to that of Scott's, which, not surprisingly, involves my own hobbyhorse: One reason so many liberals became devotees of the Executive is the altogether correct perception that Congress is only fitfully able to engage in genuine governance (I would argue, of course, because of our defective Constitution). It's one thing to prefer presidential administration over a vigorous Congress that is really making all genuine effort to confront the great issues of the day. It's another to do that when one comes to the conclusion, often with reluctance, that the alternative to a (perhaps too) strong President is even greater stasis and inability to meet the challenges that face us. I will note for the record that one reason for my unending gratitude and affection toward Elena Kagan is the fact that she was willing a blurb for my book, suggesting that it "is a timely and important book, and our country would benefit if its ideas provoked real debate." I suppose this could be called "cautious," since she certainly doesn't endorse any of my particular ideas (including the unwisdom of life tenure for Supreme Court justices,), but I was justifiably elated when she was willing to treat it as something other than mere academic flakery.

UPDATE: I probably should have been clearer that the Kagan article on "Presidential Administration" focused on domesticic policies. And the point is that all modern presidents have expressed their frustration with a do-too-little-Congress by trying to use the administrative agencies to achieve their agendas. Obviously, as several people point out below, this can have a down side as well as an upside. But, of course, so can remaining mired in our defective Constitution that, with all of its veto points, makes effective response to the domestic exigencies of the day near impossible. There is surely a serious conversation to be had about this, but declaiming the importance of an 18th-century separation of powers system (that, in fact, did not last more than a couple of years) is not very productive.

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