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Lawrence Lessig

Lawrence Lessig

Posted: May 11, 2010 02:08 PM

OK, So Now I'm a Liar

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I had the opportunity -- first time, and very cool -- to appear on Rachel Maddow's show last night to discuss the nomination of Elena Kagan. I was in segment B. Glenn Greenwald was in segment A. I had spent the afternoon reading up on Glenn's views about the nomination. I had of course seen stuff before. But I have a day job, and I hadn't obsessively followed every word that had been uttered.

My research for the show surprised me. I'm a big fan of Greenwald's. If you watch any of the last ten talks I've given about the corruption that is our Congress, you'll see I draw heavily from him. He's been a trenchant critic of lots of great targets. Almost all of that criticism I've agreed with. Some I have not.

Greenwald was an early fan of Judge Diane Wood, and with good cause. She's a great judge, with a view of the law that I (and Greenwald) find compelling. Glenn did a masterful job of weaving together her experience to demonstrate just how wonderful and progressive she'd be. I had told him as much.

But Greenwald was not a fan of Kagan. He and I exchanged a number of emails about his views of Kagan. I thought his criticism of her was mistaken. But as I acknowledged to him, and in "print," the source of my judgment is my own private experience. And that private experience is no doubt not evidence for others. So I can well understand skepticism and questions, especially when someone is being appointed for life to such a critical job.

What struck me yesterday as I researched the issue, however, was how hyperbolic Glenn's campaign had become. No doubt Elena Kagan has not written as extensively as Cass Sunstein, or Pam Karlan. But to say that "she's somebody who has managed to avoid taking a position on virtually every single issue of importance over the last two decades," or that "[s]he's managed to remain a totally blank slate" is just disqualifying hyperbole. Kagan has written a corpus of work that earned her tenure at Chicago about the First Amendment. (Read Geoff Stone's description of that work here). When she came to Harvard, she wrote an extraordinarily important piece about the nature of executive authority and the president's control over the executive. Those are two important areas of federal law that Justice Kagan will have to address. To pretend in the face of this work that she remains "a totally blank slate" is absurd.

So I called Greenwald on that on Rachel Maddow's show last night. I said I had enormous respect for Greenwald's work. But that his hyperbole needed to be "checked." And much of my ten minutes or so was devoted to pointing out the incompleteness in Glenn's raging campaign to discredit the president's nominee to the Supreme Court.

This morning Glenn responded to my challenging his hyperbole by calling me a liar. I had "spew[ed] total falsehoods on TV," he claimed. And with indignation, he denied that he had asserted the things that I had charged him with saying.

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 difference between these two positions is critical. If you believe the Constitution gives the president absolute control over the administration, then there's nothing that Congress can do about it. But if you believe that it is Congress who has given the president this power, then Congress can take away what it has given.

There is no ambiguity about what Kagan believes in this respect. As she wrote in her important 2001 piece, "Congress may limit the President's capacity to direct administrative officials... If Congress ... has stated its intent with respect to Presidential involvement, then that is the end of the matter."

Glenn has referred repeatedly to this article in his criticisms of Kagan. Sometimes he is careful to make clear that it expresses a theory of executive power that is radically different from the theories of Bush-Cheney. In his original "Case Against Kagan," he admitted that Kagan's theory is "many universes away from what Bush/Cheney ended up doing." I'd quibble with the characterization. It isn't "many universes away." It is the same universe, just the opposite view. Bush/Cheney-ites believe Congress is irrelevant. Kagan believes Congress ultimately controls.

But more recently, Glenn has been less careful in the distinction. Just yesterday, on DemocracyNow, he stated this:

But, actually, she did write a 2001 law review article on executive power that took an extremely expansive view of executive power that she herself acknowledged was first formulated by the Reagan administration to allow presidents to control administrative agencies instead of letting Congress do so.

This is of course flatly wrong. Kagan's position does not "allow presidents to control administrative agencies instead of letting Congress do so." As I quoted above, under her position, Congress ultimately controls "instead of" the president.

The same sloppiness seeped into another appearance Glenn made on DemocracyNow about a month ago. As he said on April 13:

And what little there is to see comes from her confirmation hearing as Solicitor General and a law review article she wrote in 2001, in which she expressed very robust defenses of executive power, including the power of the president to indefinitely detain anybody around the world as an enemy combatant, based on the Bush-Cheney theory that the entire world is a battlefield and the US is waging a worldwide war.

Notice now the "law review article she wrote in 2001" is being used in the context of supporting "robust defenses of executive power, including the power to indefinitely detain." It was this language that I called Glenn out on last night explicitly, asserting that the 2001 article did not even remotely support a president's constitutional claim to detain, Congress's contrary view notwithstanding.

Before I had seen Glenn's response this morning, we had emailed about this point. He had acknowledged that the "grammar is a bit vague" but that he "never thought, implied or claimed that that article had anything to do with detention."

But the question isn't detention. The question of "executive power" (as opposed to government power generally) is whether the president has a constitutional authority to decide what to do independent of Congress. That was the constitutional challenge raised by Bush-Cheney. No one thinks that there's a serious constitutional question (beyond due process rights) in this Court if Congress expressly gives the president the power to detain. The whole constitutional fight is about whether that policy judgment is one that Congress gets to participate in, or whether it is the president's to make alone. And what Glenn was saying is that Kagan's 2001 article is consistent with the "robust views" of executive power that Bush/Cheney advanced.

And so as I said last night on the Maddow show:

Now, that article was written before George Bush, before 9/11, and before George Bush articulated anything about this power.  It has nothing to do with the power of the president to detain anybody. The power of the unitary executive that George Bush articulated -- this kind of über-power of unitary executive -- was nowhere even hinted at in Elena's article.  Yet Glenn has repeatedly asserted that she is George Bush, and that is just flatly wrong.

This is my "falsehood" "spewed on TV." Except that whether it was "spewed" or not, it isn't false. Glenn has repeatedly suggested that Kagan's 2001 article shows that she believes the president has the power "instead of" Congress. That characterization of Kagan's view is flatly wrong. It was wrong to suggest she had said that about the ordinary work of administrative agencies. It was super-wrong to suggest she had said that about anything to do with the president's power to wage war. To link the two together in a single sentence would confuse -- even if the grammar were clear. And to hear people echo the words of Glenn, it is clear his confusion has spread.

Chill, Glenn. Dial down the outrage. Dial back the hyperbole. And stop calling those who applaud you liars. No doubt there are other progressives the president could have nominated with a clearer public record. I can well understand the frustration of some that the president didn't pick one of these others, even if I don't share it.

But you can make your point well enough without painting everyone else as liars or constitutional crazies. If I was confused by the "vagueness" in your "grammar," I apologize. I wouldn't have used it had I not read you repeat the thrust of the point again and again. But now that you've clarified it -- now that you've acknowledged that the 2001 piece does not support the Bush/Cheney doctrine of "executive power" -- let's move on. There are wildly more important battles to fight in our common campaign against the corruption of Congress. Winning that battle would ultimately be more important to progressives and our democracy than the difference between the justices Barack Obama could appoint.

 
 
 

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