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The Left Struggles to Define Elena Kagan

elena kagan

Since word broke that President Obama would nominate Solicitor General Elena Kagan to the Supreme Court, the progressive community has been struggling to determine whether the choice lives up to the left's expectations for a Democratic nominee.

Kagan's scant record on the issues she will confront as a justice is a huge concern for liberals who fear she may abandon a progressive agenda in favor of moving toward the center -- just as some liberals claim the president himself has done.

"Nothing is a better fit for this White House than a blank slate, institution-loyal, seemingly principle-free careerist who spent the last 15 months as the Obama administration's lawyer vigorously defending every one of his assertions of extremely broad executive authority," argues Salon blogger Glenn Greenwald, who is leading the progressive opposition against Kagan. "That's consummate Barack Obama."

Similarly, progressive blogger David Dayen at FireDogLake remarks, "So who is Barack Obama? Someone who puts a canny, cautious woman without much of a robust record or a public profile which people can judge onto the nation's highest court. Elana Kagan is a pure reflection of Obama himself."

Right-wing commentators acknowledge that liberals are right to be wary: "Those who had hoped for a liberal lion are expected instead to accept a pig in a poke," writes John Tabin at the conservative American Spectator.

Liberal commentators note that on issues ranging from executive power to gay rights and the promotion of diversity, it is hard to tell exactly where Kagan stands -- or how the left should broach her nomination.

The chief concern among liberal activists and commentators is Kagan's record on issues of executive power.

"Why is it seemingly impossible to find even a single utterance from her during the last decade regarding the radical theories of executive power the Bush administration invoked to commit grave crimes and other abuses?" Greenwald wrote last month in a piece called "The Case Against Elena Kagan."

He pointed to the few instances in which Kagan has addressed the issue, mostly coming down in favor of expanding executive powers. During her solicitor general confirmation hearing, she agreed with conservatives "about the rightness of the core Bush/Cheney Terrorism template," Greenwald wrote. "Namely, that the entire world is a 'battlefield,' that 'war' is the proper legal framework for analyzing all matters relating to Terrorism, and the Government can therefore indefinitely detain anyone captured on that 'battlefield.'"

In his opinion piece today, Greenwald writes, "Do you think that an administration that just yesterday announced it wants legislation to dilute Miranda rights in the name of Scary Terrorists -- and has seized the power to assassinate American citizens with no due process -- wants someone like Diane Wood on the Supreme Court?" Wood was a contender for the Supreme Court who liberals assume would take a firmer stance against the expansion of executive powers in the "war on terror."

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In an example of just how unclear Kagan's record is, however, NPR's Nina Totenberg reports today on a piece of evidence that shows Kagan may be more critical of expanded federal powers -- evidence most liberal commentators missed. Kagan and three other law deans in 2005 sent a letter to Congress harshly criticizing a bill that would strip the courts of their authority to review the detention practices at the prison at Guantanamo Bay.

A question marks similarly hangs over how Kagan would treat other issues important to the liberal community -- such as gay rights.

It has been widely noted that as dean of Harvard Law School, Kagan stood up against the military's "don't ask, don't tell policy," which prohibits openly gay men and women from serving. She initially refused to let the military recruit on the Harvard campus because of the law.

Some say that does not tell the whole story of how would rule on issues pertaining to gay rights.

If Kagan is confirmed, "The hope of a nationally recognized right to gay marriage is over," writes William Jacobson, associate clinical professor of law at Cornell Law School.

Jacobson notes that in a questionnaire she filled out as a nominee for solicitor general, Kagan unequivocally wrote, "There is no federal constitutional right to same-sex marriage."

The issue may come before the High Court because of a challenge that has been filed against California's Proposition 8, which bans gay marriage.

Meanwhile, Mr. Obama praised Kagan today for being a "trailblazing leader" -- as the first female dean of Harvard Law and the first female solicitor general.

In spite of her own record of "trailblazing," some liberals are saying she has not done enough to help others follow in her footsteps. Four law professors noted at Salon that as dean of Harvard Law, Kagan hired 32 tenured and tenure-track academic faculty members -- yet only one was a minority, and only seven were women. They called this fact "indefensible."

"Today, President Obama continues to recognize the importance of having an administration, federal judiciary, and indeed a Supreme Court that reflects the diversity of Americans," the professors wrote. "Yet General Kagan, who herself would benefit from his vision if chosen for the Supreme Court, showed no similar carry-through as Harvard Law School's first female dean."

But not all liberals are bristling at Kagan's nomination. Harvard Law professor Lawrence Lessig, who knows Kagan personally, writes at Huffington Post that given the nature of Kagan's career as dean and in government, it was appropriate for her to restrain her own personal liberal viewpoints.

Meanwhile, some liberals argue that it is pointless to complain that Kagan is not liberal enough.

"Not many Americans care about abstract ideological positioning, and Republicans won't parrot this talking point," writes Chris Bowers at OpenLeft. "If anything, such opposition would probably help Kagan's confirmation, by making her look moderate, or something. If progressives want to stop her from being confirmed, the absolute least effective attack will be going after her for being too far to the right."

Bowers also argues that it is hard to justify opposing Kagan's confirmation because the left does not yet know enough about her.

"Vagary just isn't enough for me to man the barricades," he writes.

More Coverage of Kagan's Nomination:

Does Kagan Think the Constitution is "Defective?"
Why Kagan? In A Word: "Leadership"
GOP Reaction to Kagan Supreme Court Nomination Stresses Lack of Judicial Experience
Jan Crawford: Kagan Is a Strategic, Not Political Pick
Four Potential Confirmation Hurdles
Kagan "Honored and Humbled" by Nomination
Peter Maer: Obama Seeks to Frame Kagan Debate on on His Terms
Early Conservative Reaction to Kagan Nomination
Jan Crawford, Bob Schieffer on Why Obama Nominated Kagan
Schieffer Sees Bitter, Vicious Fight Over Kagan
Eliot Spitzer: Kagan Would "Get the Fifth Vote"
Commentary: Elena Kagan's Goldman Sachs "Connection"
Kagan Had Rapid Ascent to High Court Nomination