This article in Sunday’s New York Times presents concerns from the Left that Supreme Court candidate Elena Kagan “may lean too far toward the middle.” Those concerns (and the corresponding hopes from some conservatives) may well be warranted on national-security issues and executive power more generally.
As solicitor general since mid-March, Kagan has taken the lead in invoking the “state secrets” doctrine in litigation challenging the NSA’s surveillance program—“Obama Administration Embraces Bush Position on Warrantless Wiretapping and Secrecy,” reads the title of the Electronic Frontier Foundation’s press release. Kagan has surely been a major player in the Administration’s decision to continue to use military commissions to try detainees and in its about-face on releasing photos of alleged prisoner abuse. She’s fought a court ruling that would extend habeas rights to detainees being held by the U.S. military at Bagram air base in Afghanistan. Kagan also recently filed a brief urging the Supreme Court to overrule a 1986 precedent that expanded the rights of suspects in criminal custody. Kagan’s leading law-review article, “Presidential Administration” (114 Harv. L. Rev. 2245 (2001)), offers a broad defense of presidential authority and explores ways that courts might promote that authority. So there’s ample reason for folks on the Left on national-security issues to be concerned about her possible nomination.
However sensible Kagan might be on this slice of issues, it doesn’t follow that conservatives should welcome her nomination. For on a host of other issues—abortion, same-sex marriage, race and gender quotas, and an aggressively secularist reading of the Establishment Clause, to name just a few—there’s no reason to believe that Kagan would be anything other than a doctrinaire liberal judicial activist. In this regard, it’s striking that the Times article, which asserts that “Republicans were almost as effusive as the Democrats in their praise” for Kagan at her confirmation hearing for solicitor general, fails to note that a full 31 senators ended up voting against Kagan’s confirmation.
[Cross-posted on The Corner]