The Corner

Kagan to the Right of Scalia?

Dan, when the words Glenn and Greenwald appear at the beginning of a post, that’s usually enough to get me to stop reading. Because it was you, I pressed ahead. But I don’t get this: “Kagan is widely respected by both sides, and has views on separation of powers / national security issues that put her, believe it or not, to the right of Antonin Scalia in many ways.”

Which issues are you talking about? Justice Scalia dissented in Hamdi (2004) because he thought the detention of an American citizen as an enemy combatant violated the Suspension Clause (i.e., Congress had not suspended the writ of habeas corpus). That decision did not defer to the executive, but there’s a good argument that it was to the right of where the Court came out (because it was more faithful to the Constitution) and that it was strong on separation-of-powers (because the Court had previously held that only Congress can authorize this form of detention by suspending the writ). It’s possible that a Justice Kagan would have voted with Justice Breyer to uphold the detention, but it’s also possible that she’d have voted with Justice Ginsburg (in dissent) to invalidate it (that’s where I’d put my money). In any event, the fact that, as the government’s lawyer, Kagan has argued in favor of detention merely means she is exploiting this precedent on behalf of her current client, not that she would not undo it if she were a justice.

Scalia, moreover, has strongly supported the detention of alien enemy combatants and the denial to them of such American constitutional rights as habeas corpus — a position rejected by the Court’s four-member liberal bloc plus its wild-card, Justice Kennedy. There’s no question in my mind that a Justice Kagan would vote with the libs? Do you have reason to think otherwise?

Finally, Scalia strenuously dissented in Boumediene (2008), in which the libs plus Kennedy radically changed the Court’s jurisprudence on separation-of-powers. Scalia, furthermore, is the author of the classic dissent in Morrison v. Olson (1988), which is about as strong an argument as has ever been made for separation-of-powers and the idivisibility of executive authority. Do you really think Kagan is close to the position Scalia stakes out in Morrison (in which he was the lone dissenter) … let alone to his right?

In any event, I’d commend to readers Ed Whelan’s excellent post on the pro-executive and pro-security positions Kagan as taken as SG. Ed describes her stances in the cases he discusses as “sensible.” That’s fair, but it’s not in Scalia’s league. And I’d caution, again, that the fact that Kagan argued precedents that supported her client’s case hardly means she wouldn’t change those precedents if she no longer had a client to worry about.

It’s also worth distinguishing “respect” and “approbation.” You’re right:  Kagan is widely respected. I respect her … but I wouldn’t vote to confirm her. As Ed points out, 31 Republicans voted against her for SG — and now we’re talking about a lifetime appointment for someone who is young enough that she’d be a force on the Court for the next 30-plus years.


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