John Yoo, giving the ultimate non-endorsement, says Elena Kagan is no John Yoo:
Though Ms. Kagan's thin record makes it difficult to draw many conclusions on her personal views, her academic work still provides hints into her thinking on this issue. In 2001, she published a 140-page article in The Harvard Law Review, “Presidential Administration,” written when she held no brief for the administration. Some have suggested that because her article looks favorably on President Bill Clinton’s energetic use of executive orders and regulatory efforts, Ms. Kagan must agree with the Bush administration’s theories of the unitary executive.
This is a mistake that could only be based on reading just the first page of her article. Choosing not to study a treatise on presidential administrative policies containing 527 footnotes is an understandable act of self-preservation. Nonetheless, those who persevere will find that her article clearly and directly rejected the theories supporting the executive branch's broad constitutional powers. Rather, it is in line with the views of a majority of the Supreme Court justices and many liberal scholars who feel the executive branch's powers are quite limited.
The tone of the op-ed, which is critical but extremely gracious compared to his writing about Sonia Sotomayor, has an odd feel, like Yoo knows he's doing Kagan a big favor. Of course, it's possible that he's trying to make the GOP realize there's more daylight between them and Kagan than they've assumed, but frankly he could have been a lot nastier if he was trying to provoke alarm.
Of course maybe this is the soft bigotry of low expectations here, since Yoo managed to get out his criticisms without calling her names.
-- A. Serwer
