[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...]

Judgment, values, and politics are what matters on the Court. And here I am somewhat at a loss. Clearly, [Kagan]’s a Democrat. She was a highly regarded member of the White House staff during the Clinton years, but her own views were and are something of a mystery. She has written relatively little, and nothing of great consequence. - Jeff Toobin, cited by Jack Balkin to evidence that Elena Kagan is not a "stealth nominee."

Coming from a law professor, expressing disdain because people care what a SCOTUS nominee thinks is strange. Coming from the very smart Jack Balkin, it seems incomprehensible:

Liberals and conservatives alike are worried about Kagan's politics once she becomes a Justice. They are pouring over her body of legal writings, scrutinizing elements of her career, and psychoanalyzing her from a distance. Journalists are busily constructing a story of her life to make her accessible to the general public, while her political opponents try to engage in various forms of character assassination or, at the very least, a death by a thousand cuts. I find all of this dreary and tiresome.

(Emphasis supplied.) WTF? And this is BS:

Link:

There is no doubt that Elena Kagan has exemplary academic and professional credentials. And she has been a pioneer for women, serving as the country’s first female Solicitor General and as the first woman to be Dean of Harvard Law School. I applaud the President for nominating someone who has a varied and diverse background outside the circuit court of appeals.

I voted against her for Solicitor General because she wouldn't answer basic questions about her standards for handling that job. It is a distinctly different position than that of a Supreme Court Justice. I have an open mind about her nomination and hope she will address important questions related to her position on matters such as executive power, warrantless wiretapping, a woman’s right to choose, voting rights and congressional power.

(Emphasis supplied.) I would add a question on Dickerson v. US ("Congress may not legislatively supersede our decisions interpreting and applying the Constitution. [. . .] we conclude that Miranda announced a constitutional rule that Congress may not supersede legislatively. Following the rule of stare decisis, we decline to overrule Miranda ourselves.")

Speaking for me only

Jeff Rosen writes:

In an academic article she will no doubt most regret, Kagan laid out what conservatives are already calling the “Kagan standard,” insisting that senators should question Supreme Court nominees closely. The Kagan standard is well worth applying to Elena Kagan [. . .]

I completely agree with Jeff Rosen. Let's apply the "Kagan Standard" to Elena Kagan.

Speaking for me only

Elena Kagan's expressed views are sparse. She has a lot of answers to provide. But since we pretty much knew she would be the nominee a while ago, we wrote about the few issues where her views and/or conduct were known. First, I wrote a lengthy post extolling Kagan's law review article on executive power as an exercise in scholarly excellence and progressivism. Second, I wrote a critique of her hiring actions as Dean of Harvard Law School. Third, I discussed Kagan's views on preventive detention (they are similar to my own, which are not progressive.)

Here is Jeralyn's take on the announcement of Kagan as SCOTUS nominee.

The story of Elena Kagan's legal views remains to be told and she needs to tell it during her confirmation hearings.

Speaking for me only

Previously I criticized Joe Sestak for his eagerness to rubberstamp Elena Kagan's nomination to the SCOTUS. Sestak criticized Arlen Specter's no vote on Kagan for Solicitor General. Booman provides Specter's very compelling defense of his No vote:

I don't know very much more about [Kagan] now than I did when we started the process. From the many questions that I asked her on cases, I have picked out a few to illustrate the problem I am having with figuring out where she stands and the problem I am having with her confirmation. [. . . W]e do not know very much about her views [. . .] I had calls from people in high positions--I do not want to identify them--saying: Well, don't ask those kinds of questions. Somebody in the executive branch. Well, I am not prepared to relinquish the institutional prerogatives of the Senate to ask questions. The executive branch nominees want confirmation. Well, Senators want information to base their opinions on.

[. . .] In essence, it is difficult to cast a negative vote on someone with the qualifications and background of Dean Kagan, but we have a major problem of institutional standing to find out from a nominee what the nominee thinks on important questions. [. . .] I think we have to pay a little more attention, and I have gone to some length to try to find out more about Dean Kagan. In the absence of being able to do so and to have a judgment on her qualifications, I am constrained to vote no.

(Emphasis supplied.) In my view, this is precisely the attitude that the Senate should take towards all judicial nominees. On this issue, Joe Sestak could not be more wrong and Arlen Specter could not be more correct.

Speaking for me only

Does the Congress have the right to limit Fifth Amendment rights by passage of a statute? This seems like a simple question to which the answer is an emphatic No. But the Obama Administration's position on this puts this view in doubt:

The Obama administration said Sunday it would seek a law allowing investigators to interrogate terrorism suspects without informing them of their rights [. . .] Mr. Holder proposed carving out a broad new exception to the Miranda rights established in a landmark 1966 Supreme Court ruling. It generally forbids prosecutors from using as evidence statements made before suspects have been warned that they have a right to remain silent and to consult a lawyer.

Does Elena Kagan believe that Congress can restrict fundamental Constitutional rights by mere passage of a statute? Let's hope not. I'll have more on this silly election year proposal from the Obama Administration in a later post.

Speaking for me only