Monday, May 10, 2010; 3:11 PM
I'd be miffed if I were Elena Kagan. This morning, as President Obama introduced his new Supreme Court nominee, he predictably lavished her with praise as "one of the nation???s foremost legal minds" and "a trailblazing leader." He went on specifically to laud her work as solicitor general: "During her time in this office, she???s repeatedly defended the rights of shareholders and ordinary citizens against unscrupulous corporations. Last year, in the Citizens United case, she defended bipartisan campaign finance reform against special interests seeking to spend unlimited money to influence our elections." In choosing to highlight these cases, Obama clearly was trying to play to the liberal wing of his party. Conveniently not mentioned were cases in which Kagan or her office argued for positions loathed by the left. For example, Kagan's staff argued against extending habeas corpus rights to detainees held in Afghanistan's Bagram Air Base. She personally urged the Supreme Court to read an antiterrorism statute to prohibit lawyers from advising U.S.-tagged terrorist groups about how to use peaceful and lawful means to advance their political objectives. Under her leadership, the Justice Department took virtually the same position as the Bush administration in defending the government's right to shield information from litigants using the state secrets doctrine. She argued in legal papers that federal judges had no power to order release into the United States of Chinese Uighurs wrongly detained at the Guantanamo detention center. So which Kagan are we getting: the warm and fuzzy defender of Obama's "little guy" or the hard-right ideologue who would have fit right in as a "loyal Bushie"? The truth: Maybe both, maybe neither. We don't know. At least not yet. The president -- a constitutional scholar -- made the mistake (or perhaps the political calculation) to attribute personally to Kagan the viewpoints of her government client in a few, select cases. Yet few lawyers are ever perfectly in sync with those they represent. Does anyone think, for example, that Ted Olson, President George W. Bush's first solicitor general, believed fervently in the righteousness of the McCain-Feingold campaign finance reform he defended against legal attack? I seriously doubt it, but Olson upheld his oath and carried out the task of his office by defending the constitutionality of a congressional statute. This didn't make him a true believer; it made him a good lawyer. Kagan's work as SG should be critiqued on the quality of the argument and the integrity of the legal reasoning and not as a glimpse into her own legal psyche. (Of course, senators may ask her what her personal views are on these matters, but I doubt she'll be forthcoming.) I'm skeptical about either parties' willingness or ability to be fair or honest. Conservatives will likely jump all over Kagan for her Citizens United arguments and others that could be interpreted as left-leaning. Even though many liberals are disturbed by the right-of-center national security positions, they are unlikely to make a big fuss for fear of damaging the president politically. But can you imagine the furor if Kagan had been nominated by a Republican president and had taken these positions in court? The shouts would be deafening.