KAGAN: WILL SHE OR WON’T SHE?

By William Fisher

The question of whether Supreme Court nominee Elena Kagan will move the Court to the right or the left continued today to be among the main points of contention among legal scholars.

Kagan, currently the first woman to serve as U.S. Solicitor General, would be the third woman to sit on the high court at the same time. She would also be the second Jewish justice, the other being Ruth Bader Ginsberg.

Since long before President Obama nominated her to the highest court in the country, one school of observers has been saying that Kagan has the intellectual fire-power to persuade Justice Kennedy to join the "liberal" wing of the court on more occasions, while another group believes that, based on her record, her appointment is more likely to move the court to the right.

At one end of this spectrum of opinion stand the views of Prof. Frances Boyle, the left-of-center firebrand legal scholar from the University of Illinois Law School.

Boyle told IPS, "As dean of the Harvard Law School, Kagan hired Bush's outgoing director of the Office of Legal Counsel, Jack Goldsmith, as a law professor. Goldsmith is regarded by myself and many others in the field as a war criminal. He wrote some of the memos that attempted to make violations of the Geneva Conventions appear legal. Kagan actually bragged about 'how proud' she was to have hired Goldsmith after one of his criminal Department of Justice memoranda was written up in the Washington Post.”

Boyle added that, "During the course of her Senate confirmation hearings as Solicitor General, Kagan explicitly endorsed the Bush administration's bogus category of 'enemy combatant,' whose implementation has been a war crime in its own right.”

In her current job as U.S. Solicitor General, Boyle says, “Kagan is quarterbacking the continuation of the Bush administration's illegal and unconstitutional positions in U.S. federal court litigation around the country, including in the U.S. Supreme Court. “

Taking an equally strong stand is Marjorie Cohn, immediate past president of the progressive National Lawyers Guild and a professor at Thomas Jefferson School of Law. Cohn’s recent article, entitled, "Kagan Will Move Supreme Court to the Right," states: "Unfortunately, President Barack Obama has continued to assert many of Bush's executive policies in his 'war on terror.' ... During her confirmation hearing for solicitor general, Kagan agreed with Senator Lindsey Graham that the president can hold suspected terrorists indefinitely during wartime, and the entire world is a battlefield. While Bush was shredding the Constitution with his unprecedented assertions of executive power, law professors throughout the country voiced strong objections. Kagan remained silent."

Bruce Fein, a prominent conservative who served in the Department of Justice during the Reagan Presidency and a fierce defender of civil rights, believes Kagan’s past actions offer solid portents of what she may do on the bench.
He told IPS, “Kagan demonstrated in her equivocation over excluding DOD from campus recruiting because of don’t ask, don’t tell that her philosophical sound track is that discretion is the better part of valor. She has no deep convictions about constitutional interpretation ala Scalia.”

But, he added, “She has defended outlandish positions of the Obama administration in the US Supreme Court, for example, an attorney would be guilty of material assistance to a foreign terrorist organization by filing an amicus curiae brief on its behalf, or defending Obama’s authority to continue detention of Guantanamo detainees after they have prevailed in habeas corpus proceedings disproving that they were ‘enemy combatants’. She has been more a loyalist to the President than a strict defender of the Constitution. Her confirmation would move the High Court to the right. “

Another view is being expressed by Scott Horton, a constitutional lawyer and a frequently-quoted contributing editor to Harper’s magazine. He told IPS, “First, as to the premise that Kagan would belong to the ‘liberal’ wing of the Court: Her scholarship is relatively limited in scope, but it would hardly lead to the judgment that she's a liberal. Her positions are generally centrist.”

He added, “In particular, as contrasted with John Paul Stevens, she is not a civil libertarian by any stretch of the imagination, least of all on national security issues, where she would more likely please Bill Kristol than Glenn Greenwald.”
Horton notes that on the issue of presidential power, “She seems to embrace and support an executive who wields tremendous, and growing power. Her work on ‘Presidential Administration,’ for instance, shows that she appreciates and uses the concept of the Unitary Executive at least to some extent.”

“On national security matters,” Horton contends, “she has staked out positions that are clearly far to the right of Stevens. I think she could wind up surprising many observers after she's on the court, but I incline to view her as a centrist Democrat, probably not far away from Sonia Sotomayor, and certainly to the right of Stevens, so her appointment moves the Court to the right generally.

Kagan’s views on presidential power also disturb the Center for Constitutional Rights, (CCR), a legal advocacy group that has defended dozens of Guantanamo Bay prisoners.

In a statement, CCR executive durector Vince Warren said, “At the Center for Constitutional Rights, we have fought at the forefront to hold back presidential overreach and the dangerous growth of executive power, particularly as it concerns torture, detention, surveillance and racial profiling, areas where the government has flouted the law most blatantly over the last decade. I am sad to say that Solicitor General Elena Kagan’s record indicates a troubling support for expanding presidential powers, something we must be vigilant about at this time.”
Yet another perspective comes from Morris Davis, Former Chief Prosecutor for the Guantanamo Bay Military Commissions. He told IPS, “The distinctly American truth" is that if you don't have a law degree from Harvard, Yale, or Columbia you don't have the ‘right education’ to attain the ‘God-given potential’ to be a Supreme Court justice.

He said Harvard, Yale, and Columbia “are three of the 199 law schools accredited by the American Bar Association -- about 1.5 percent of the total -- and produce about 3 percent of law school graduates annually, yet graduates of the three most elite Ivy League law schools will fill 100 percent of the nine seats on the U.S. Supreme Court.”

Republican critics, gearing up for a possible confirmation fight this Summer, are already preparing the ground by noting that confirming a Solicitor General is a lot different than confirming a Supreme Court Justice – a lifetime appointment.
The opposition will likely raise a number of other issues in Kagan’s past. For example, in 2003, while serving as Dean of the Harvard Law School, Ms. Kagan spoke out against the Defense Department's "don't ask, don't tell" policy. She wrote, "I abhor the military's discriminatory recruitment policy," a policy she called "a profound wrong -- a moral injustice of the first order."

The limits on Presidential power are certain to be a major area of debate during her conformation hearings.

Brian J. Foley, Visiting Associate Professor of Law at Boston University School of Law, told IPS, “A main inquiry is what are the nominee's views of the proper role of the executive in the so-called war on terror. Does the nominee support the power grab of the last administration - a power grab that, unfortunately but perhaps not surprisingly, the current administration seems to favor? The problem is that many legislators seem to have drunk the kool aid that the way to deal with the threat of terrorism - a threat that is likely over-rated - is to wage war and crack down on our civil liberties. So, legislators are unlikely to probe deeply about such matters at confirmation hearings.”

Yet another skeptical view is voiced by Tina Foster, head of the Alliance for Justice, which is providing legal assistance for prisoners at Bagram Air Base ion Afghanistan.

She told IPS, “Ms. Kagan is listed as the primary drafter of the brief in opposition to our Bagram cases. Since she drafted the legal argument for Obama's defense of indefinite detention of all future war on terror detainees, it's hard to imagine her disagreeing with her own argument if appointed to the Supreme Court. I'd assume she would recuse herself if a case she worked on below was pending before her in the Supreme Court.

Kagan’s confirmation hearings before the Senate Judiciary Committee will likely take place this summer, according to Committee chairman Sen. Patrick Leahy, a Vermont Democrat.