Lawrence Lessig Calls Glenn Greenwald's Critique Of Elena Kagan 'Absurd'

A well-known law professor and popular liberal commentator are locked in a pitched battle -- playing out on their blogs and on the airwaves -- over President Barack Obama's choice of Elena Kagan to fill a Supreme Court vacancy.

In separate appearances last night on MSNBC's "Rachel Maddow Show," Harvard Law Professor Lawrence Lessig took Salon blogger Glenn Greenwald to task for his opposition to Kagan, the current U.S. Solicitor General. Lessig took particular exception to Greenwald's contention that Kagan lacks a clear judicial record.

"The hyperbole in what Glenn is saying here is something we really have to check. He said right at the top of your show that there's a complete blank slate here. That every substantive legal question she has left unanswered," Lessig told Maddow Monday night. "That is just absurd."

Greenwald fought back on his blog Tuesday, asserting that on MSNBC Lessig had twisted Greenwald's previous writings on Kagan and spewed outright falsehoods. Greenwald accused Lessig of "trying to discredit" him and compared the Harvard professor to a "party apparatchik."

Greenwald said Lessig was "making things up and spouting clear falsehoods"

The intellectual ping-pong match continued with a follow-up post by Lessig Tuesday afternoon further explaining his position:

My claim against Glenn is that he is fudging a critical distinction to the end of painting Kagan as some kind of Bush-Cheney monster. The distinction is between lawyers like Kagan who believe the president has broad power to control the executive branch because Congress (directly or indirectly) gave him that power and others like Cheney who believe the president has broad power to control the executive branch because the Constitution (directly or indirectly) gave him that power. The critical word here is "broad": Everyone agrees that there is a core of executive authority that the constitution has vested in the President exclusively. The debate is how broadly that core extends.

The feud between Lessig and Greenwald began in April when Greenwald penned a Salon blog laying out the case against Kagan. About a week later Lessig wrote his own piece published on the Huffington post entitled "A Case For Kagan."

Watch Greenwald's MSNBC appearance:

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Watch Lessig's MSNBC appearance:

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Comments

[larce1948]

10:38 PM on 05/17/2010

Greenwald is typical of why the Left never wins anything. " It's not perfect, so I can't support."
This attitude is particularly annoying when it comes from an elitist professionial gumball like Glen. Pragmatism, Mr. Player Dude. Learn it , live it, move a progressive agenda foward in a realistic manner. You advance nothing by being the leftist Tucker Carlson.

[MIMD]

09:18 PM on 05/13/2010

PASSION IS BEST TEMPERED WITH REASON AND THOUGHTFULNESS!

The bubble's burst; I'm quite disappointed. I have read two of Mr. Greenwald's books (I think they're "OK"); and, for the most part, share his "politics". But it only takes one misguided assertion here, one muddled fact there; and the whole fraglie edifice of trust, and respect is in peril. I demand more of my pundits/commentators! I'm not seeking a "FOX of the left". Were I a personal friend I would say "Glen, stop for a minute and just listen to yourself!" At least Mr. Hyperbole himself (Keith Olberman) is funny.

His case against Ms. Kagan for the most part parallels my initial feelings. But I was moved by the clearly stated, detailed argument of Dr. Lessig. Given his history and writings; I would credit him as more than simple shill for a personal friend. He may be on target--She may have what it takes to function the present and future SCOTUS'. From a wider perspective, she appears much less "Conservative" and exceedingly unlikely to be the "right wing sleeper" many fear--Au contraire! Given her expertise, intellect, respect for the rule of law; rather than doctinaire lip-service to any number of liberal "litmus tests"; she will provide a foundation on which to build. I believe her nomination an extremely shrewd move on the part of the president; and if she is to disappoint any group in the future, it will be right wing "Supreme Court social engineers"

MIMD

[citizen1787]

02:12 PM on 05/13/2010

"I'm still waiting for someone, anywhere, to point to something about Elena Kagan that demonstrates commitment to anything other than her career ambitions and institutional loyalties. It's very understandable why a President would want someone like her on the Court during his time in office, but that's a far cry from making a case as to why progressives should consider her an acceptable choice to remain on the Court for what likely will be decades."

great quote

[Ergon]

08:23 PM on 05/12/2010

said I could care less she was a Jewish Lesbian, as long as the President appointed a PROGRESSIVE Jewish Lesbian, which, she isn't. She's not ebven competent, which compounds the insult. But then, he's the President, and has an absolute right to appoint whomever he wants.
But is he aware of the damage this is doing to his presidency? He was elected by progressive Democrats and Independents, and young people because they thought he was different. Does he really think they'll show up to vote for Democrats this year or 2012? Does he really think he can afford to alienate his core? Party apparatchiks can lecture us all they want, but the end result will probably, Obama as President in 2012 and a Republican majority in both houses.

[StopMakingSense2]

04:31 PM on 05/12/2010

Who are they and why should I care?

[JScott]

01:21 PM on 05/12/2010

Typical of the corporate media thinking that these 2 hold some 'great weight' as opinion formers and they think of themselves as greater than they really are.......news for you YOU DON'T!

Most folks don't even know who these people are, and therefore DON'T CARE!

[truthglow]

01:12 PM on 05/12/2010

As far as I'm concerned, Lessig has already lost the battle. He is trying to save his friend, and in so doing, has thrown out all of his principles. Perceptions are clouded when friends and relatives are involved. The clear thinking of Glenn Greenwald always wins in my book, and I believe him over Lessig and Obama. This woman should not be confirmed, or we will be in bigger trouble than we already are. The obvious glee about the nomination this morning by Republican Hack, Ken Star, makes me all the more certain about this.

[blueskybigstar]

12:50 PM on 05/12/2010

Stop thinking in terms of left and right.

What are the issues that concern you.

Make a list.

Research your politicians' stances.

Take a stand when you vote and by informing others of what the media tries to hide from us.

This is the only way to save the country.

[Mekarri]

01:02 PM on 05/12/2010

fanned

[weebils]

06:27 PM on 05/12/2010

You ask too much. It is easier to sit back and complain and whine. If i hear one more person talk about what FDR and Johnson did I will scream. They seem to forget how forceful the people were in letting the politicians know how they felt. There were massive demonstrations supporting the policies of FDR and Johnson. In the 1930s they would actually camp outside congress to put pressure on them everyday. Where are all the people who lost their homes, have no healthcare and the unemployed? When are they going to march on Washington? Now you can barely get people to vote, write a letter, email or phone. They think they are doing you a favor if they electronically sign a pre filled petition.

[blueskybigstar]

08:38 PM on 05/12/2010

There have been massive demonstrations. I have been in a few. The problem is that our media does not cover them, so it is like they never happened. People have become discouraged. If we could get the media to do their fiduciary duty to bring us the news, then we could start to fix our country. Take a look at a few revelatory links.

We also need to make sure that we don't have SCOTUSs who support the fake war on terror.
http://rawstory.com/rs/2010/0511/kagan-helped-shield-saudis-911-lawsuits/
http://rawstory.com/2010/03/revealed-ashcroft-tenet-rumsfeld-warned-911-commission-line-should-cross/
http://rawstory.com/news/2008/Scientists_find_active_superthermite_in_WTC_0404.html
http://www.youtube.com/watch?v=daNr_TrBw6E
http://www.judicialwatch.org/flight77
http://www.velvetrevolution.us/prosecute_rove/
http://www.prisonplanet.com/times-square-bomber-linked-with-cia-controlled-terror-group.html
http://www.youtube.com/watch?v=TWbyZSnHFkc

[blueskybigstar]

08:39 PM on 05/12/2010

CIA director, William Colby, before they offed him for talking too much.

"The Central Intelligence Agency owns everyone of any significance in the major media."

[blueskybigstar]

12:45 PM on 05/12/2010

What is her opinion about the Palestinians?

[iswideopen]

12:28 PM on 05/12/2010

I don't care for Greenwald at all. Keith Olbermann is even loosing me, again. I am not a liberal, but I am a stauch Democrat. I have sense enough to know, from using my very own mind, that I can think for myself. Even if Elena Kagan said every little thing that Greenwald and the liberals "wanted to hear", what the hell good would it do if she got on the SC and voted with the Conservative judges. Your arguments, as usual, make no sense when it comes to attempting to read someone else's mind. You're never satisfied with President Obama. Why not just stop voting or vote Republican. I, for one, am sick of your constant whinning on everything that he does. I get more than enough of it from the Republican party of "hell no". You should be more astut about these matters.

[truthglow]

01:19 PM on 05/12/2010

And you're a "Democrat?" I think not.

[iswideopen]

02:15 PM on 05/12/2010

truthglow:
I guess you didn't read my post. I can see, as usual, any liberal who thinks they know everything and have all of the answers are not reasonable enough to debate with. The idealogy kicks in every time. Keep thinking you have supermajorities around the country and the Democratic party will loose every time. Can you even remember how long we were out of power before now because of your same ignorance of the reality of the moment, and not the fantasy you wish it to be. I don't know about you, but I don't want our party to go back there. So, if you all choose to stan on that idealogy, go for it and good luck with power for our party for another decade or two. Can you live with yourselves after it will be proven to you at the ballot box? For once, just be honest and true to your own selves about what reality really is.

[weebils]

07:03 PM on 05/12/2010

I would fan you again if I could :)

[noudidnt]

12:13 PM on 05/12/2010

A minority with her resume would not have been put forward for the SCOTUS.

[iswideopen]

12:30 PM on 05/12/2010

noudidnt:
Don't even try it. This Black American says to you; don't go there. Be intelligent, not stooooopid.

[iswideopen]

06:01 PM on 05/12/2010

HuffPo Moderator:
Where is my more than kind response to this abusive poster "noudidnt"? What is up with that. Liberals can never take constructive critisizm. Grow up.

[rubberneckduck]

10:08 AM on 05/12/2010

My Boston Terrier Missy is calling for her breakfast. Gotta go. G'bye.

[loveroffarrakhanobamatoo]

10:10 AM on 05/12/2010

I sure hope you come back...as a matter of fact you have compelled me to become an instant fan of yours....take care

[lizr]

10:45 AM on 05/12/2010

I like that the two of you are working this out amicably.

you are both fanned.

[Marciarita]

09:54 AM on 05/12/2010

Haven't most Supreme Court Justices that had no prior judicial experience ended up being on the more "liberal" side of the aisle, due to their backgrounds dealing with real people, instead of sitting up on a bench listening to the worst cases one can?

The cases that get to the Supreme Court are not trivial, which I think makes many who have been judges before, a bit cynical in the first place because they've seen the ridiculous lawsuits that come and go. The Supreme Court doesn't deal with "Judge Judy" type cases.

I would like a "real world" person, not one who is already cynical.

[Eris23]

11:23 AM on 05/12/2010

What is "liberal" on the Supreme Court?

[BlackTantalus]

05:08 PM on 05/18/2010

Thurgood Marshall, deceased.

William O. Douglas, deceased.

That appears to be all the liberals on the Supreme Court in my lifetime.

Just because the John Birch Society and the Ku Klux Klan have joint control of the Republican party today, does not make 1970s-era Republican appointments "liberal."

[NotAfraid]

09:52 AM on 05/12/2010

Is there any doubt that the next conservative US president, whoever that might be, will carry on the Bush/Cheyney neocon philosophy that the president can do whatever he wants whenever he whats with absolutely no check or balance? Make up your worst case scenario, take the implementation of the teabag party platform in Maine for instance or how about a nuclear war with Iran or an assacination of some elected leader in Latin America. Someone will sue, the lower court will make whatever ruling and the Supreme court will vote 5-4 saying the constitution gave the executive branch full powers especially in "these times of emergency". Kagan will side with the neocons.

[rubberneckduck]

09:58 AM on 05/12/2010

I believe as Solicitor General Kagan has argued in support of the Obama Admin's favorable use of Bush Era executive power policies.

[truthglow]

01:24 PM on 05/12/2010

Obama is already following the Bush/Cheney administration neocon philosophy. And it is believed that Kagan has neocon relatives, for your information. Very, very interesting!

[Ifeomamn]

09:46 AM on 05/12/2010

Greenwald, FDL Jane H., Cenk U., PUMAs, Greens, ans many more. President BHO will never be enough for you. Most of you always trump up, well, I disagree with the president. I voted for him. Is this change we can believe? What about XYZ? He has old out. He is weak. Et cetera. What I have always wondered with these same folks, pres Clinton was not good enough. Most of them could careless for Carter. They despise LBJ for 'Nam. I am not sure where they will be with JFK, perhaps, the Bay of Pigs. Truman, Korea and Atomic Bombs. FDR, I don't know. Granted President BHO is not perfect. My goodness is he ever trying to fix 41 yrs of repubs assult on this nation, education, infrastructure, economic turmoil, 2 wars, the judicial system that in 41 yrs been turned upside down, et cetera. They accuse the president of not pushing things and shaking the system. I bet my last dollar that these same people thought Bush2 went too far over reaching. Guys & Gals, get over it, Mr BHO is Not Bush2, never will be, never claimed to be. Bush2 is not a barometer to measure the president. If you must, measure by his successes and his failures. Today is not the '90s, '70s, '60s. '50s, '40s or the '30s. We are all entitled to speak our minds. But please stop impugning your prejudices and conflicts on the president.

[lizr]

09:58 AM on 05/12/2010

"Meanwhile, Elena Kagan’s record as dean of Harvard Law School is coming
under scrutiny. A group of law professors have openly questioned Kagan’s
diversity record at Harvard. During her time as dean, Kagan made
thirty-two tenured and tenure-track academic hires. Of these thirty-two,
only one was a minority, and only seven were women."

http://www.democracynow.org/2010/5/11/headlines#5

and Obama supporters are drinking the Kool Aid still. refusing to look at the information or deal honestly with the criticisms.

You all have turned him into a personality cult, like Mao or Saddam.

I expect to see HUGE statues of him dominating someplace appropriate..

like Wall Street.

[TruEngineHearing]

10:55 AM on 05/12/2010

You're so kool !

You are flailing around, waving clichés like facts, bad ideas as if nobody will check your thinking. "HUGE statues", eh? Yowee! - you're gonna need more fans and more badges to make any of that float...

[rubberneckduck]

10:00 AM on 05/12/2010

From the monent he won the election and began backtracking on his populist progressive campaign rhetoric he started becoming not good enough for us.

Actually had the country done what Carter urged and gone solar (Reagan took Carter's solar panels off the White House) we likely would n't be where we are today. Had the REagan Bush criminals been jailed as they should have for Iran Contra Carter's name would be better regarded today.

[lizr]

10:10 AM on 05/12/2010

Jimmy Carter was arguably the last truly honest president with foresight we have had.

agree 100% on solar.

Had we followed his lead, think how many more would be alive, and the planet less poisoned by the effects of oil!

[Ergon]

07:46 PM on 05/12/2010

Fanned.