Elena Kagan Nominated to the SCOTUS

Here we go again with the hyperbole from both sides.  A left wing ideologue that is gonna kill babies and take away our guns but a Cheney loving neocon at the same time.  The part that always amazes me the most is how both the left and right like to boil down a whole career into a few labels.  Suffice to say the jury is still out on Kagan like with every nominee until they sit on the bench.

My biggest concern with her nomination is her someone inconsistent writings and responses about executive power.

In 2005 she rebuked Bush’s military tribunals (see entire story here).

As news broke Sunday evening of her impending nomination, word began spreading of a little-noticed letter Kagan had co-signed in 2005. The letter laid out major concerns and criticism with an amendment that Sen. Lindsey Graham (R-SC) had authored to the Defense Authorization bill that would have denied federal courts jurisdiction to consider habeas corpus petitions filed by prisoners at GITMO. The amendment also would have limited the judicial review of decisions of the Combatant Status Review Tribunals and Military Commissions.

Kagan, along with fellow law school deans T. Alexander Aleinikoff of Georgetown,
Harold Koh of Yale and Larry Kramer of Standford noted that: “When dictatorships have passed… our government has rightly challenged such acts as fundamentally lawless. The same standard should apply to our own government.”

It was a harsh rebuke of the one of the cornerstone philosophical tenets of the so-called “War on Terror.” And, in some respects, it diminishes the notion that Kagan values executive power over civil liberties.

In 2007 she did the same (read entire story here).

As dean of Harvard Law School, Kagan sharply and publicly criticized the excessive claims of executive authority put forth by Bush administration lawyers such as John Yoo. In an address at her school’s graduation ceremony in 2007, she forthrightly condemned “the expedient and unsupported legal opinions” used by Yoo and other lawyers to justify violations of federal laws regulating wiretapping and interrogation. Kagan minced no words in her critique of Bush administration lawyers who “failed to respect the law” or who manipulated, bent, or evaded the law “to seek short-term advantage.” She also held up as a model to the graduating students and their families and friends the actions of independent counsel Archibald Cox in standing up to President Nixon. And she praised other lawyers such as Jack Goldsmith, who insisted that President Bush cease the secret wiretapping program because they believed it unlawful.

On the other hand some statements she made enabling executive power during her confirmation hearings for solicitor general were troubling.

The people that actually know her like Elliot Spitzer all comment that she is remarkably intelligent and persuasive.  Spitzer goes so far to say she can persuade the likes of Kennedy to provide the 5th vote that is most important on a divided court on the most important issues like disavowing corporate personhood.

She’s obviously liberal on most social issues like civil rights and abortion. I like the fact that she defended against the Citizens United case. Even though she lost she had the gumption to call out Scalia as being “wrong”.  She is most famous kicking ROTC off campus as Dean of Harvard Law because of the millitay’s DADT policy.

Anti-choice groups are already bashing her (read whole story here).

Kagan is a supporter of taxpayer-funded abortion and has criticized Rust v. Sullivan, a case which upheld federal regulation that prohibited federal Title X funds from being used for abortion.

Dr. Charmaine Yoest of Americans United for Life said that Kagan “has strong ties to abortion-advocacy organizations and expressed admiration for activist judges who have worked to advance social policy rather than to impartially interpret the law.”

Kagan is also well known for supporting “LGBT rights” by opposing the presence of military recruiters on Harvard law school’s campus.  She judged that the military’s “Don’t Ask, Don’t Tell” (DADT) policy regarding individuals with same-sex attraction to violate Harvard rules regarding discriminatory organizations.

She called the DADT policy “profoundly wrong” and a “moral outrage” of the “first order,” according to NPR.

My personal feeling is since Thurgood Marshall is her role model that she will be a fine addition to the court.   Like Stevens and Souter before him who were both considered too conservative at the time if a justice is fair minded, appreciates legal precedent and not an ideologue the Constitution is a liberal enough document on it’s own merits for liberal interpretations of the law.  I dare say when her term ends people will be complaining her replacement is not liberal enough to fill her shoes.