Attorney General

Legal Writings of SG Nominee are ‘Dense, Hedged and Moderate’


The legal writings of Harvard law dean Elena Kagan don’t provide many clues about her terrorism positions that vexed the Bush administration.

The New York Times examined the writings of Kagan, who is Barack Obama’s nominee for solicitor general, and found them to be “dense, hedged and moderate.”

The Times notes Kagan’s 2001 Harvard Law Review article on the “unitary executive” theory, used to justify broad presidential powers in the Bush administration. Kagan wrote about a narrower meaning of the phrase—that the president has power to control the executive branch.

President Reagan used the theory mainly to suppress regulation, while President Clinton used it to expand regulation, Kagan wrote in her article, “Presidential Administration.”

Kagan wrote that Reagan’s emphasis on confidentiality sometimes interfered with the ability of the public and Congress to identify “the true wielders of administrative authority.” Clinton’s more “nakedly assertive” style of authority was more conducive to public understanding, she wrote, and more desirable.

Still, Kagan wrote, Clinton’s style of issuing directives raises constitutional questions. “I do not espouse the unitarian position in this article,” Kagan wrote. “Although I am highly sympathetic to the view that the president should have broad control over administrative activity, I believe, for reasons I can only sketch here, that the unitarians have failed to establish their claim for plenary control as a matter of constitutional mandate.”

Kagan’s views are more quote-worthy in a statement she made in a book review on Senate confirmation fights. The Times notes that she may come to regret her assertions in the article. When the Senate fails to engage nominees in a meaningful discussion of legal issues, she wrote, “the confirmation process takes on an air of vacuity and farce.”

“The safest and surest route to the prize” for nominees, she said, is “alternating platitudinous statement and judicious silence.”

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