The flame war between Tom Goldstein and Glenn Greenwald over Solicitor General Elena Kagan's suitability for the Supreme Court has to be one of the most bizarre Internet spectacles I've seen. I'm not sure I've really ever seen two people this smart basically ignore the most difficult elements of each other's arguments in order to take personal potshots at each other.
Goldstein sniffs that Greenwald is a member of the "progressive fringe," a characterization belied by the White House's very direct concern about his criticisms of Kagan. Greenwald, meanwhile, accuses Goldstein of reflexively defending any Supreme Court nominee because
Goldstein's law firm, Akin Gump, is "the world's only law firm devoted exclusively to Supreme Court litigation."* In other words, it's in Goldstein's professional interest to flatter potential Supreme Court nominees, given his frequent appearances before the Court. Goldstein also has a pre-existing professional relationship with Kagan that he did not disclose in his post. These attacks are beside the point and don't actually address the merits of either argument regarding Kagan's potential nomination. Ultimately, though, I find Greenwald's case against Kagan more persuasive, and I'll explain why later in the post.
On a substantive level, Greenwald basically ignores Goldstein's convincing argument that Kagan, in her defense of indefinite detention of al-Qaeda suspects during her confirmation hearing, was merely stating the law and backing up the testimony of then-Attorney General nominee Eric Holder the day before. Goldstein further notes that even Greenwald favorite Dawn Johnsen made similar comments to the committee. Fair enough.
But Goldstein seems equally deliberate in ignoring that Neal Katyal, now Kagan's deputy, criticized her for joining unitary executive types in "celebrating" claims of presidential power. Keep in mind that Katyal is to the right of what Goldstein would define as the "progressive fringe" -- known to most of us as mainstream liberal legal experts and human-rights groups -- in that he wants a system of secret national-security courts to try terrorists. Goldstein refers only briefly to Greenwald's citation of Katyal's concerns and does not attempt to rebut them.
Goldstein acknowledges that Kagan has "said very little on ideological and constitutional questions – creating the parallel to David Souter I raised in my February post – all the available evidence is that she would emerge on the Court’s center-left." I don't know why Goldstein thinks this would be persuasive -- ask Republicans how that whole Souter thing turned out for them. Kagan's record on important issues is sparse, which both makes her legal philosophy difficult to divine and what material there is much more significant. She is a Democrat, and would likely go left on most issues, but no one's contesting that. From what she has said and written, it seems she would be to the right of Justice John Paul Stevens on matters of executive power. This is a completely valid concern for liberals, who have every right to expect the president they elected to consider their priorities when selecting a nominee on top of whether the nominee is generally "qualified."
This isn't, as it was with Sonia Sotomayor, a question of Kagan's critics ignoring her record in order to smear her. Goldstein's ultimate defense of Kagan is unpersuasive precisely because
she does not have an extensive record to evaluate, and is therefore a
risky choice from the perspective of Obama's own supporters. Since we don't have a Republican president, it's not as if liberal misgivings about a particular nominee are irrelevant. There's nothing about this situation that invites Goldstein's smug dismissal of liberal concerns, particularly since he admits he's as clueless as to Kagan's legal philosophy as anyone else, which is a big part of Greenwald's original argument.
* I made a mistake in an earlier version of this post. Akin, Gump isn't devoted exclusively to Supreme Court litigation, but Goldstein did found a law firm that was, and now at Akin, Gump that is his focus.
UPDATE: Greenwald responds to Goldstein on the Kagan/Johnsen issue in the comments section of his original post here. I'll have a post on this tomorrow.
-- A. Serwer