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The Left vs. Elena Kagan

Some liberals see red flags in the thin record that Kagan does have.

By 5.10.10

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One almost feels sorry for the left today.

John Paul Stevens was the most reliably liberal member of the Supreme Court. Today, President Obama will announce that he is replacing Stevens with Solicitor General Elena Kagan. As it has become increasingly clear that Kagan would be Obama's choice (it has been the consensus almost from the moment that Stevens announced his retirement that Kagan was the frontrunner), there has been much gnashing of teeth and rending of garments among liberal legal commentators about Kagan.

Kagan has never been a judge and has written only a few law review articles. We know nothing about her views on most issues that will come before the court. She is, as Paul Campos put it at the New Republic last week, a blank slate. Those who had hoped for a liberal lion are expected instead to accept a pig in a poke.

Some liberals see red flags in the thin record that Kagan does have, particularly on the issue of executive power. This is based on a Harvard Law Review article she wrote in 2001 titled "Presidential Administration," in which, based on her experience serving in several posts during the Clinton administration, she argued that it is a good thing for presidents to assert control over the regulatory bureaucracy. This is a version of the unitary executive theory, which holds that when the Constitution says "The executive Power shall be vested in a President of the United States of America," it means that the executive power shall be vested in a President of the United States of America. (Crazy, I know.)

Conservatives (and some but not all libertarians) generally like a unitary executive, not only because it is obviously closer to the orginal understanding of the Constitution's text than a government run by bureaucrats operating autonomously, but also because it gives presidents the ability to rein in aggressive regulators. Kagan's article pointed out that this cuts both ways: A liberal administration can also use its power over agencies to push more aggressive regulation. "Where once presidential supervision had tended to favor politically conservative positions, it generally operated during the Clinton Presidency as a mechanism to achieve progressive goals," she wrote.

Samuel Alito's support for the unitary executive inspired some ridiculous attacks during his confirmation; his critics could not seem to grasp that the unitary executive theory is about the structure of executive power, not about its scope. It has almost nothing to do with the war powers that President Bush and now President Obama have asserted. Glenn Greenwald writes, in his case against Kagan from the left, that the unitary executive "was distorted by the Bush era"; it would be more accurate to say it was distorted in the Bush era by people like Glenn Greenwald. Attacks on "pro-executive-power views" were nonsensical then and remain nonsensical now. Kagan may be a fan of relatively unchecked executive authority, but her writings don't tell us that.

If you doubt that the left is upset about having to swallow Kagan without being sure where she stands on all issues, look no further than the willingness of four liberal law professors to play the race card against her with claims that her hiring record as Dean of Harvard Law School shows a lack of commitment to diversity. There is much that is wrong with this line of attack -- William A. Jacobson ably picks it apart -- but it's most notable for its desperation.

You can see why liberals would be irked. There was a time when Republicans were the ones who had to deal with stealth nominees with a minimal paper trail to avoid controversy. In 1990 George H.W. Bush nominated David Souter after being assured by John Sununu that he'd be a "home run" from conservatives' point of view. Souter, of course, turned out to be a fairly reliable liberal. Three years later Bill Clinton could nominate Ruth Bader Ginsburg, a former lawyer for the ACLU, and face almost no opposition.

What changed between then and now is that the right gained a lot of ground in the debate over how the Constitution should be interpreted. In 1987, CBS asked, "When the Supreme Court decides an important constitutional case, should it only consider the legal issues, or should it also consider what the majority of the public thinks about that subject?"; only 32% of respondents endorsed the former view while 60% said the Court should consider public opinion. When CBS asked the same question in 2005, only 42% said the Court should consider public opinion; 49% said judges should stick to what the law says. With Democrats facing a tough election this November, the Obama Administration lacks the political capital to endure a nomination fight now that a plurality of the public opposes a liberal judicial philosophy that once enjoyed the support of a comfortable majority.

Of course, just because Kagan worries the left does not necessarily mean the right should support her. There is little evidence that she will turn out to be a secret conservative, and there is one incident in her background that should give Republicans particular pause. More on that tomorrow.

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John Tabin is a frequent contributor to The American Spectator online.