Supreme Court Nominations

Ex-SG Says Kagan Is Progressive on Executive Power; Some Liberals Think Otherwise


Is Solicitor General Elena Kagan so conservative that she will disappoint liberals if she is nominated to the Supreme Court?

Some liberals are criticizing Kagan for her stances on executive power and national security wiretaps, the National Law Journal reports. But “most liberals will likely fall in line behind her” if she is nominated to replace Justice John Paul Stevens, the NLJ says. And one well-known liberal, Walter Dellinger, is already defending her views on executive power in an article in Slate.

Dellinger, a former acting solicitor general in the Clinton administration, notes assertions that Kagan would move the court to the right on executive power, and says they are “way off the mark.” Kagan’s views, he says, are “fundamentally progressive.”

He points to two pieces of evidence. One is a 2007 graduation speech in which Kagan criticized “the expedient and unsupported legal opinions” of Bush administration lawyers who authorized harsh interrogations of terrorism suspects.

The second is her 2001 Harvard Law Review (PDF) article, “Presidential Administration.” The article defended President Clinton’s theories of administrative power under statutes that give discretion to the executive branch, Dellinger writes, but it recognized that the president is bound to comply with laws that limit his authority. Kagan’s article saw presidential power to supervise federal agencies as a way to achieve progressive goals, Dellinger says.

“The Bush-Cheney view of executive power was wrong not because it asserted that the president could direct administrative agencies to achieve policy goals,” he writes. “It was wrong because it allowed for the president to ignore decisions made by Congress and assert unilateral power to violate duly enacted laws.”

The National Law Journal looked at Kagan’s record as Solicitor General. “She has charted a virtually seamless path from the Bush to the Obama administrations, to the chagrin of liberals who were hoping for a little less continuity,” the story says.

The article notes that Kagan is obliged to support Obama administration policies and federal statutes, and says one of her goals had been continuity. But the NLJ points out some subtle and some significant changes in her office’s positions, despite a seeming continuity.

Law professor Steve Vladeck of the American University Washington College of Law says one difference is a change in justification for presidential powers in terrorism cases. The Bush administration had argued that the president had inherent constitutional powers to fight terrorism, he told the NLJ. Now the Justice Department is instead basing presidential authority on a congressional authorization to use military force after Sept. 11.

Hat tip to How Appealing, which noted Dellinger’s article.

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