I think there are still a number of valid reasons to oppose Elena Kagan's nomination to the Supreme Court, but her position on executive power is not one of them, given that her views on executive power are fairly opaque. What we have seen of her personal views so far has been mostly positive--her public opposition to Lindsey Graham's attempt to strip federal courts of jurisdiction to hear detainee cases, and her public criticism of John Yoo's torture memos. Today the New York Times uncovers another nugget.
Among issues that have arisen is her view of executive power. In summarizing a 2005 panel discussion, Ms. Kagan described as “a little bit scary” the view that “there aren't really any legal constraints” on the president's authority to fight terrorism.
Of course, she is working for an administration that believes it has the authority to target American citizens suspected of terrorism for killing without trial, but again it's hard to say that this is necessarily her personal position that doing so is completely legal.
At any rate, it's really beyond time to let go of the whole "Kagan is a Cheneyite" meme. We simply don't know where she really stands, and unless her confirmation hearings depart from the usual standard, I doubt we'll really find out.
-- A. Serwer
