From Greenwald’s piece:
Beyond the disturbing risks posed by Kagan’s strange silence on most key legal questions, there are serious red flags raised by what little there is to examine in her record. I’ve written twice before about that record — here (last paragraph) and here — and won’t repeat those points. Among the most disturbing aspects is her testimony during her Solicitor General confirmation hearing, where she agreed wholeheartedly with Lindsey Graham about the rightness of the core Bush/Cheney Terrorism template: namely, that the entire world is a “battlefield,” that “war” is the proper legal framework for analyzing all matters relating to Terrorism, and the Government can therefore indefinitely detain anyone captured on that “battlefield” (i.e., anywhere in the world without geographical limits) who is accused (but not proven) to be an “enemy combatant.”
Those views, along with her steadfast work as Solicitor General defending the Bush/Cheney approach to executive power, have caused even the farthest Right elements — from Bill Kristol to former Bush OLC lawyer Ed Whelan — to praise her rather lavishly. Contrast all of that with Justice Stevens’ unbroken record of opposing Bush’s sweeping claims of executive power every chance he got, at times even more vigorously than the rest of the Court’s “liberal wing,” and the risks of a Kagan nomination are self-evident.
Scott Horton’s take is a little more nuanced, but essentially the same:
My suspicion–and it’s only a suspicion–is that Kagan is a liberal in the sense of the Kennedy and Johnson Administrations, someone who has faith in the power of the executive to shape a better and more just state. She pays lip service to the limitations on executive authority contained in the Constitution, but she’s generally in the thrall of executive power.
Stuart Taylor, Jr. at The Atlantic chimes in:
But on presidential power and terrorism, she is more of a known quantity.
Justice Stevens led the Court’s assault on the Bush Administration’s sweeping claims of presidential and congressional power to wage war against terrorism. In three big decisions in 2004, 2006, and 2008, narrow liberal majorities — with swing-voting Anthony Kennedy providing the fifth vote — for the first time asserted judicial power to review presidential detentions of alleged “enemy combatants” seized and held abroad. Stevens and his allies also invalidated the rules decreed by Bush for “military commission” trials of foreigners for alleged war crimes and severely restricted interrogations of suspected terrorists.
Kagan has had no occasion to revisit those precise issues as solicitor general. But on somewhat analogous issues — both in her 2009 confirmation testimony and in defending Obama’s continuation of some Bush policies that left-liberals reviled — she has sought to limit the reach of the 2008 decision and has firmly rejected the stance of the left.… [however, he concludes]…
Speaking as a moderate independent, I like everything about Kagan that the left dislikes.
Additional commentary from The American Conservative:
Perhaps they are all too tired out from combating Sotomayor’s non-existent racism that they don’t have the energy to resist a nominee who appears to be a willing enabler of the worst excesses of the national security state. In reality, we all know that most Republicans have no interest in checking those excesses, and many of them have become so attached to defending such excesses that it has become part of their political identity. To the extent that most Republicans are content with or not overly concerned about Kagan, because she seems to line up with them on some of the issues on which the GOP has been appallingly bad, progressives, libertarians and small-government conservatives have reason to be worried.
And from The American Prospect:
Presumptive front-runner Elena Kagan, while an attractive candidate in some respects, has a record on civil liberties and executive power that strongly suggests she would not be a liberal in this mold either. This would be bad for the development of progressive constitutional values.
When Kagan is confirmed, it will be but one more step in the long and unabated pattern of Congressional acquiescence to the Executive, and abdication of its own institutional responsibilities that I identified a while back. It would certainly be helpful if they realized at some point that their interests as Congress-lizards are not the same as the interests of their respective parties, and are definitely not the same as the interests of the Executive Branch. We do not live in a parliamentary system, and Congress is supposed to be a coequal branch. Unfortunately, Congress seems to think otherwise.
and from the comment thread on that post:
It would be nice if the Republicans at least tried to object on executive power grounds. They haven’t, and it doesn’t look like they’re expecting to seriously contest her nomination in general. This is most likely because they actually like her positions on executive power, much as they actually liked the Dick Cheney view of executive power. This does not excuse the Congressional Democrats, who will continue their well-established pattern of spinelessly acceding to the wishes of the Executive branch.
Since we don’t actually have a body of case law decisions to look at, we don’t know for sure that Kagan will be as staunch a supporter of the unitary executive as Mark fears. However, given the fact that we still have The Patriot Act and we still have warrantless wiretapping, I’m disinclined to give the Administration a pass on this.
She seems to be smart, impressive and honest — and in her willingness to suppress so much of her mind for the sake of her career, kind of disturbing.
Her life, so far as one can tell, is her career, and her career has been built by avoiding any tough or difficult political or moral positions, eschewing any rigorous intellectual debate in which she takes a clear stand one way or the other, pleasing every single authority figure she has encountered, and reveling in the approval of the First Class Car Acela Corridor elite.
I’m not so enamored of bashing elites, but it does seem pretty odd to me that someone who is being positioned to be a Final Arbiter of conflict in our society has so little public expression of the ability to be involved in conflict.