Legal News

Kagan?s Confirmation: Platitudinous Statement and Judicious Silence?

By Dan Slater

With scrutiny of Eric Holder heating up (see below), let’s turn to the qualifications of Elena Kagan, the Harvard Law Dean whom Obama has tapped for solicitor general.

The NYT reports that the 48 year-old Kagan, who clerked for Thurgood Marshall and worked on tobacco legislation in the Clinton administration, has provided few clues about where she stands on important legal issues of the day, such as the Bush administration’s broad assertions of unilateral executive power in areas like detention, surveillance, interrogation and rendition.

But, in a 2001 Harvard Law Review article, the Times notes, she considered the “unitary executive” theory. “I do not espouse the unitarian position,” she wrote. “President Clinton’s assertion of directive authority over administration, more than President Reagan’s assertion of a general supervisory authority, raises serious constitutional questions.”

Clinton nominated Kagan to the U.S. Court of Appeals for the District of Columbia Circuit, but the nomination stalled in the Senate. In a 1995 review of a book on Senate confirmation fights, notes the Times, Kagan made a statement she may come to regret.

“When the Senate ceases to engage nominees in meaningful discussion of legal issues,” she wrote, “the confirmation process takes on an air of vacuity and farce.” But she also described “the safest and surest route to the prize.” The trick, she said, is “alternating platitudinous statement and judicious silence.”

Full post as published by Law Blog - WSJ.com on January 07, 2009 (boomark / email).