The idea that Elena Kagan is John Yoo with wide lapels now seems to be an established Beltway fact.
"Libertarian" law professor Glenn "Instapundit" Reynolds squeals with delight at her "Cheneyesque" views of executive power. Rudy Giuliani chuckles about her views on national security, which he also imagines are right wing. Stuart Taylor reads Glenn Greenwald's case against Kagan from weeks ago and decides he likes Kagan, because when it comes to executive power he'll have whatever Greenwald isn't having. Scott Horton reads Kagan's article on presidential administration and concludes that she is "in the thrall of executive power."
All of these people have departed from the reality-based community. While I originally and mistakenly assumed that Kagan's exchange with Lindsey Graham over the issue of indefinite detention indicated right-wing views on national security, Kagan was merely stating the law. While Kagan's record is alarmingly blank, she has twice spoken up on the Bush administration's conduct on national security issues: once in 2005 to oppose Graham's attempt to block detainees' access to federal courts, and again in 2007 to criticize John Yoo. These actions suggest she is actually to the left of where the Beltway has ultimately decided she is.
When the left says "executive power," what they are really concerned about are things like the unfettered ability of the executive to conduct surveillance on American citizens without warrants, to imprison people without trial or access to attorneys, to torture people during interrogation. They're not talking about not empowering regulatory agencies. Kagan arguing that the executive can strengthen regulatory agencies for progressive ends does not mean she would vote to allow the executive to whisk terror suspects off to a black site in Lithuania where they can get the Khmer Rouge treatment. This is wingnut thinking. It is the same quality of argument that Tea Partiers make when they argue that end-of-life counseling will lead to "death panels."
To the extent that there is a case that Kagan is "in the thrall of the executive," it is as skeletal as the one against it. What we know is that she has served in one previous White House, which would likely cause her to develop a certain sympathy for the priorities of the executive, and that she has been Solicitor General in another one, in which it was her legal obligation to defend the government's position on certain issues. If it were deeply offensive to her sensibilities that detainees at Bagram who were captured in third countries don't deserve access to federal courts, she would have left the administration. The correct answer as to what Kagan thinks about the powers of the executive on pressing issues of national security is "I have no idea."
In the end though, her views on such issues are probably irrelevant. As one legal expert pointed out to me today, on the immediate cases involving rendition and access to counsel for detainees, Obama has already won any cases that might come up in the near future by nominating his solicitor general, who will have to recuse herself because of her prior involvement. This virtually ensures that the conservative majority on the court will prevail. It's a classic Obama move in its subtlety and ruthlessness. Civil libertarians should be opposing the Kagan nomination on those grounds, not on the grounds that Kagan is Dick Cheney reincarnated.
I deserve criticism for having initially jumped the gun on Kagan, and for whatever role I may have played in creating this beltway meme. But it's time to let the facts get in the way of a good story.
-- A. Serwer
