Clinton Solicitor General, Walter Dellinger refutes Glenn Greenwald on Elena Kagan on views of Executive Power.
Clinton SG v. Glenn Greenwald on Elena Kagan
The former Solicitor General responds directly to every point made by Glenn Greenwald regarding Elena Kagan in how she would supposedly move the court to the right in regards to her experience as solicitor general.
Here's his first point:
Glenn Greenwald, whose writing I generally admire, has speculated, for example, that Kagan would move the court "closer to the Bush/Cheney vision of Government and the Thomas/Scalia approach to executive power and law." He also believes that Kagan was silent in the face of presidential abuses of power by the Bush administration.
That is all way off the mark. Let's take Greenwald's second point first. 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.
He states that Kagan was silent in the face of abuses by the Bush Administration, and that should be cause for concern as to whether she would do the same for the Obama administration. Kagan condemned the Yoo style executive claims of authority during a graduation ceremony. While, that's not exactly Dawn Johnsen, that should prove that she's not silent.
Next, he cites how she adheres to the Clinton administration's view of executive authority and cites several cases where John Paul Stevens laid some line on during the early Bush years.
These views do not come as a surprise if one reads Kagan's 2001 Harvard Law Review article "Presidential Administration." She does not endorse anything remotely like the Bush-Cheney view of broad presidential power to evade laws passed by Congress. (The article was written before Sept. 11 prompted articulation of the Bush-Cheney doctrine.) Greenwald correctly acknowledges that "what Kagan was defending back then in [2001] is light years away from what Bush/Cheney ended up doing, and her defense of Clinton's theories of administrative power was nuanced, complex and explicitly cognizant of the Constitutional issue they might raise." He nonetheless sees her positions on presidential power as leaning in a more conservative direction that the justice she would replace, John Paul Stevens.
I think that's wrong. Kagan's views on the president's power to direct the executive branch are in fact fully consistent with the positions taken by Justice Stevens. Her legal views are based in significant part on two of Stevens' most important opinions for the court, Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. and Hampton v. Mow Sun Wong, decisions about the authority of federal agencies that Kagan rightly reads as encouraging presidential leadership under statutes that give discretion to the executive branch.
Essentially, Glenn Greenwald's ENTIRE CASE AGAINST KAGAN is based on her Solicitor General experience. Kagan's job as SG is to enforce the administration line. Whether she agrees or disagrees with it personally doesn't play any role in the process.
Hence her record outside of her Solicitor General experience reflects a progressive.