This is pretty funny:

Some have suggested that because [Kagan's 2001 Harvard Law Review] article looks favorably on President Bill Clinton’s energetic use of executive orders and regulatory efforts, Ms. Kagan must agree with the Bush administration’s theories of the unitary executive.

This is a mistake [. . . H]er article clearly and directly rejected the theories supporting the executive branch’s broad constitutional powers. [. . .]

This is actually very true, as I explained on April 14. Of course for Yoo, this is a bad thing. For the civilized world, it is a favorable for Kagan.

Speaking for me only

Our good friend Glenn Greenwald was on ABC's This Week talking Kagan and other things:

Given the forum, Glenn did good. I wish he would not have characterized Kagan's career path in pejorative terms and instead had just focused on her views, or the lack of a public record of her views on a number of subjects. Also Greg Craig was astoundingly bad in defense of Kagan, and the Administration will need to find better surrogates for her.

Speaking for me only

One of the silliest arguments that you will hear to defend the view that judicial nominees should not answer questions about their legal views is the supposed need to maintain "the appearance of impartiality." By that logic, the Supreme Court itself could not decide cases that touch upon decisions they participated in. Let me provide a few examples. The late Chief Justice William Rehnquist dissented in Roe v. Wade in 1973. After Roe, a series of cases touching on the right to choose came before the Court. And in 1993, the Court decided Planned Parenthood v. Casey. To the surprise of no one, Rehnquist maintained his view that Roe was wrongly decided:

In Roe v. Wade, the Court recognized a "guarantee of personal privacy" which "is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." 410 U.S. at 410 U.S. 152"]152-153. We are now of the view that, in terming this right fundamental, the Court in Roe read the earlier opinions upon which it based its decision much too broadly.

Was the "appearance" of judicial impartiality damaged because Rehnquist had publically stated his views on the right to choose in his dissent in Roe? And if it wasn't, how in blazes would requiring a judicial nominee to say whether they agree with Roe or Casey damage the "appearance"of impartiality?

This argument for not requiring answers from judicial nominees is empty, vacuous and idiotic.

Speaking for me only

The Kagan Standard:

[Elena Kagan] called on the Senate [. . .] to embrace “the essential rightness — the legitimacy and the desirability — of exploring a Supreme Court nominee’s set of constitutional views and commitments.

Then Senator Barack Obama stated that the Kagan Standard is even more imperative for a nominee with no judicial record:

Harriet Miers has had a distinguished career as a lawyer, but since her experience does not include serving as a judge, we have yet to know her views on many of the critical constitutional issues facing our country today. In the coming weeks, we'll need as much information and forthright testimony from Ms. Miers as possible so that the U.S. Senate can make an educated and informed decision on her nomination to the Supreme Court.

As regular readers know, this is a view I embraced many years ago, and discussed often during the 2005 John Roberts confirmation process, and later the Alito and Sotomayor confirmation processes. In a Bloggingheads session with Glenn Greenwald, Larry Lessig makes the utterly vapid argument that Professor Kagan is different from nominee Kagan and Dems should not take the same position they did with Republican nominees. Not only is this baldly unprincipled and hypocritical, it is also stupid. I'll explain why I think so on the flip.

Reuters:

[Sen. Arlen] Specter [D-PA] said, [Supreme Court nominee Elena ] Kagan reiterated her criticism that the Senate confirmation process yields little information about Supreme Court nominees and that one justice was less than forthcoming during his or her confirmation hearing. [. . .] Specter said Kagan reiterated her earlier criticism, made before her nomination this week, of the confirmation process as "not telling very much about the nominee."

[Specter] emerged from his meeting with her on Thursday saying, she "was very forthcoming during our discussion."

This is great news if Kagan holds to it. Best news on her so far in fact, from my perspective.

Speaking for me only

It is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today’s decision - Justice John Paul Stevens in dissent in Parents Involved v. Seattle School Districts

Understanding and KNOWING Elena Kagan's views on race and diversity are critical to evaluating her as a nominee for the Supreme Court. The hiring practices of Harvard Law School while she was Dean are already a matter of concern. Yesterday, Politico's Josh Gerstein characterized some memos by Kagan as expressing disagreement with race conscious remedies:

Other memos suggest that Kagan and Reed thought that the race initiatve was pressing for too many race-conscious solutions when the central focus should be a "race-neutral opportunity agenda." They did, however, concede an ongoing role for civil rights enforcement and "narrowly-tailored affirmative action programs."

I'm trying to get copies of these "other memos" so I can judge for myself but I do want to highlight the importance of the issue. A review of the Court's decision in Parents Involved demonstrates the stakes. In Parents Involved, Chief Justice Roberts wrote for a 5-4 majority:

[The President] shall have Power, by and with the Advice and Consent of the Senate, [. . .] to [. . .] appoint [. . .] Judges of the supreme Court - Article II, Section 2 of the Constitution

When discussing President Obama's nomination of Solicitor General Elena Kagan to the Supreme Court, I think it is important that we understand the process and what stage we are at. Many people are just joining the discussion now, after President Obama nominated Kagan. But the discussion began soon after Justice John Paul Stevens announced his retirement. That discussion centered upon who Obama should pick. Many, including myself, hoped Obama would choose a committed progressive voice with a clear record. For some of us, Pam Karlan would have been the dream pick. Judge Diane Wood, who appeared on the reported short lists, was the preferred short listed candidate amongst most progressives.

The President, exercising his constitutional power, chose instead to nominate Kagan. While discussions continue to rage as to why Obama preferred Kagan to Wood, from a Constitutional perspective, the issue now becomes the role of the Senate exercising its Advice and Consent power. It is my view that the Senate, in the exercise of its constitutional duties, must deeply explore the legal views of the nominee before "consenting" to the President's choice. More . . .

Ezra writes:

[W]e simply don't know that much about Kagan's [views.] Her defenders point to her long history working for Democratic politicians and clerking for liberal judges as a record in itself, and they're not wrong on that. But at best, it's evidence of an orientation rather than a guide to Kagan's thinking. That's why Kagan's hearings will be an uncommonly high-stakes affair, as they're really the only avenue open to us to learn about her judicial thinking.

[. . .] Kagan has previously stated her belief that nominees should be extremely forthcoming during confirmation hearings. [. . .] It's worth pausing for a moment to look at where we are: A candidate who has impressed everyone she's ever worked with [. . .] but doesn't have the sort of public record that we associate with people vying for the job she's seeking. [. . . W]e need the Senate hearings to learn about Kagan. Testimonials and analogies are no substitute for hard information.

Precisely.

NYTimes editorial on why the Kagan Standard must be applied to Elena Kagan:

President Obama may know that his new nominee to the Supreme Court, Elena Kagan, shares his thinking on the multitude of issues that face the court and the nation, but the public knows nothing of the kind.

[. . . A] search for her own views on dozens of other matters yields little. Though she has said that she respects precedents on abortion, she has said virtually nothing on racial preferences, gun rights or private property rights. [. . .] There is no record to suggest an answer.

[I]n one of Ms. Kagan’s few forcefully stated positions, she wrote in 1995 that she detests “polite and restrained” confirmation hearings, calling them a “vapid and hollow charade” and urging senators to fully explore a court nominee’s substantive views. We hope the Senate follows her advice and gets Ms. Kagan to open up a little.

The Senate must demand that Kagan open up a lot.

Speaking for me only

Glenn Greenwald approvingly links to Jonathan Turley's statement (see also Jeralyn) that:

President Obama has decided to nominate someone who is demonstrably more conservative than [Justice Stevens] on some issues [. . .]

Turley refers specifically to Kagan's stated views on preventive detention and designation of enemy combatants. I think Turley's claim is inaccurate. Whether one agrees with Kagan's views on the matter, what is clear is that Kagan's stated views do not diverge from Justice Stevens' stated views on this issue. To understand this point, it is necessary to review Justice Stevens' opinion in Hamdan v. Rumsfled and the dissenting opinion of Justice Scalia, which Justice Stevens joined in Hamdi v. Rumsfeld. Let's consider these opinions on the flip.

A healthy honest to goodness substantive debate has erupted over the nomination of Elena Kagan. For once, the debate of the moment is between what I would call Left progressives and Center progressives. (The Republicans are likely to oppose any Obama nominee en masse, so they are irrrelevant to the substance of the debate, but perhaps not to the process (more on that later.))

For the first time in a long time, I watched Keith Olbermann's Countdown and Rachel Maddow's show to watch the debate. Olbermann had Jonathan Turley on (not my favorite, but he was interesting last night) and Ezra Klein on the politics of the nomination (Ezra was pretty good too.) Maddow had the more interesting segment, with Glenn Greenwald and Larry Lessig. Here is the Maddow segment:

More . . .

Law prof Jonathan Turley fears Elena Kagan will move the Supreme Court to the right, especially on civil liberties and support for Bush-era policies:

For liberals, the problem is her “pragmatic” approach to civil liberties and support for Bush policies. Stevens was the fifth vote in opposing such policies and Kagan could well flip that result. Few could have imagined that voting for Obama would have resulted in moving the Court to the right, but that appears to be case with the selection of Kagan.

He also makes a point I made last night: Obama has never been the liberal that liberals thought he was. [More...]