From 44 at The Washington Post:
President Obama’s nomination of Solicitor General Elena Kagan to replace retiring Supreme Court Justice John Paul Stevens was met with criticism from the left and the right Monday as liberals continued to raise questions about her views on executive power and conservative bloggers honed in on her lack of experience as a judge.
Original DVD cover
Salon blogger Glenn Greenwald has been Kagan’s most outspoken liberal opponent. Nearly a month ago, Greenwald laid out “The case against Elana Kagan,” and he has been hammering her ever since, largely over her views on executive power.
Meanwhile, at The American Prospect, Adam Serwer suggested that a 2005 letter co-signed by Kagan to Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) criticizing an amendment to restrict the ability of courts to review practices at Guantanamo Bay may signal more progressive views on executive authority.
National Review’s Ed Whelan — who found himself under attack over the weekend after using an insulting George Bernard Shaw quip calling a woman a prostitute in reference to Kagan’s legal views — argued that Kagan fails to meet her own standards for the high court:
Kagan may well have less experience relevant to the work of being a justice than any justice in the last five decades or more. In addition to zero judicial experience, she has only a few years of real-world legal experience. Further, notwithstanding all her years in academia, she has only a scant record of legal scholarship. Kagan flunks her own “threshold” test of the minimal qualifications needed for a Supreme Court nominee.
Noting Greenwald’s criticisms, The Atlantic’s Stuart Taylor Jr. writes that if confirmed, Kagan will likely push the court to the right, particularly on national security issues:
But Kagan’s record suggests that she probably falls to the right of Stevens — arguably the most liberal current justice — at least on the presidential-power and war-on-terror issues that may be more important than any others that come before the justices in our times.
as Solicitor General, she has forcefully championed Obama’s continuation of Bush’s long-term detention without trial of Guantanamo prisoners; of Bush’s detention of prisoners in Afghanistan with no judicial review at all; and of Bush’s use of the “state secrets” doctrine to fend off lawsuits over Bush’s warrantless wiretapping program. Kagan has also apparently helped shape Obama’s plan to use congressionally revamped military commissions to try some terrorism suspects and other broad claims of presidential power.
So is anyone happy about Kagan’s nomination? The New Yorker’s Jeffrey Toobin, who attended Harvard Law with Kagan, said the traits she shares with the president could serve her well:
Since Kagan’s nomination was imminent, I was struck by certain similarities between the President and his nominee. They are both intelligent, of course, but they also share an ability to navigate among factions without offending anyone.
Libertarian Radley Balko suggested that Kagan will come down on the side of government on a range of issues:
She’s a cerebral academic who fits Washington’s definition of a centrist: She’s likely defer to government on both civil liberties and regulatory and commerce issues.
From Bloomberg Businessweek:
May 10 (Bloomberg) — Senate Republicans said a lack of litigation experience may be one of the toughest issues confronting Supreme Court nominee Elena Kagan, as Democrats predicted she will win bipartisan support and take her place on the nation’s highest court.
Senate Majority Leader Mitch McConnell said Republicans want to ensure that Kagan, now the government’s top Supreme Court lawyer, will not be a “rubber stamp” for the administration and won’t have a “preconceived idea of who should win.”
Senate Judiciary Committee Chairman Patrick Leahy called Kagan a “superb nominee” and said one of her strengths is her background outside the “judicial monastery,” including a stint as the dean of Harvard Law School.
“She will be confirmed,” Leahy, a Vermont Democrat who will preside over Kagan’s Senate hearings this summer, told reporters. He noted that Chief Justices William H. Rehnquist and Earl Warren also hadn’t been judges before being named to the court.
President Barack Obama today selected Kagan, the first female U.S. solicitor general, to succeed retiring Justice John Paul Stevens. By doing so, he put before the Senate a candidate who just a year ago went through a lengthy confirmation process before the Judiciary panel, and then won full Senate confirmation on a 61-31 vote.
“As I made clear when I supported her confirmation as solicitor general, a temporary political appointment is far different than a lifetime appointment to the Supreme Court,” [Jon] Kyl [of Arizona] said in a statement.
Kyl told Kagan at her confirmation hearing last year that her lack of extensive litigation experience may harm her ability to be the government’s top Supreme Court advocate.
Asked whether Kagan’s lack of extensive litigation experience was a legitimate issue for Republicans to raise, Leahy said, “It’s never bothered them confirming Republican nominees who haven’t had litigation experience.”
Kagan, 50, a New York native and former Clinton administration official, also will face attacks from Republicans for opposing military recruiting on the Harvard campus because of the services’ gay ban.
Still, Democrats and independents hold 59 seats in the Senate and need help from only one Republican to ensure a floor vote on the nomination. Justice Sonia Sotomayor last year won confirmation 68-31, with nine Republicans supporting her.
Senator Arlen Specter, a Pennsylvania Democrat who, as a Republican, opposed Kagan’s nomination to be solicitor general because he said she wasn’t forthcoming on some matters, today praised the choice and said he pushed Obama to pick someone outside the court system.
Senator Lindsey Graham, a South Carolina Republican who serves on the judiciary panel, said in a statement today that Kagan has a “strong academic background” and that he has been “generally pleased with her job performance as solicitor general,” particularly on terrorism issues.
Leahy dismissed the controversy over Harvard’s restrictions on military recruiters, noting that armed services recruiters were still able to meet with students blocks from the campus.
“She’s being nominated for the Supreme Court, not the secretary of defense,” he said.
Leahy said he will meet with Kagan this week, and then confer with Senator Jeff Sessions of Alabama, the top Judiciary Committee Republican, before setting a date for Kagan’s confirmation hearings.
Me? I don’t know a lot about Elena Kagan, but I think it will be pretty cool to have three women on the Supreme Court at one time.
(l to r: Sonia Sotomayor, Ruth Bader Ginsburg (she was always the sassy one), Elena Kagan)