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.
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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Randall L. Kennedy: The Media Jabs Are Unfair, Kagan Will Fight for Equality on the Court
There has been some grousing in the media about the paucity of racial minorities hired during Kagan's Deanship. I have known her for twenty-five years and must say that these criticisms are unfair.
Do your own research and draw your own conclusions. it hardly matters, however. The Senate will do as it pleases. Expect a more conservative US Supreme Court. Only a handful of Democratic senators any longer refer to themselves as liberals, let alone left. Bad vibes for democracy and progress.
Having said that, this WHOLE arguement seems to be entirely based around Kagan's position on executive power and some nitpicking over syntax. Greenwald says she is in favour of the President having broad powers that could be abused. Lessig is saying she isn't in favour of that unless Congress GIVES him that power.
The way I see it, the potential end result is the same...more executive power for the president to potentially abuse. Ask yourselves, do any of use truly feel better about broadened executive powers under Bush simply because congress gave him that power? I sure don't. That to me just further proves how far our democratic system has fallen and failed us.
And if Kagan was all that serious about clearing up her positions for Greenwald OR Lessig supporters, she would live up to her OWN word when she was head of Harvard law and openly state her positions on various legal issues. Except we already know that she won't live up to her own word. She will continue to hide behind the same non-answers she once bashed others for doing. Again, that doesn't make me feel much better about her appointment as it tells me she will say things she doesn't believe if it will help her.
It's really quite an amusing spectacle, teaching the important lesson that taking Greenwald seriously is the only real error here.
It's not about Bush.
It's about the old David Halberstam counsel that we should be extremely skeptical that people are to be trusted and elevated merely on their being the establishment's 'best and brightest'...and not the John Bolton-like war-porn enthusiasts and gore-spattered troglodytes of the American right.
The more accurate point Lessig is clearly keen to airbrush is that Obama--and Clinton before him--have both been plenty keen on the use of unaccountable violent tactics in this 'forever war' folly.
Was Bush-Cheney a grotesque horrorshow on these questions? You bet, but the Kagan nomination and it's boosterism by the likes of Lessig (whose work on campaign reform I appreciate greatly) concerns a different problem: in a two party system, the Dems have bloody hands too...it's what, in what Brit Richard Seymour calls the "Liberal Defence of Murder".
The bait-and-switch in that is annoying, and invites skepticism to whatever else Lessig is trying to get across...like, say, the conceded-as-weak idea (but of course why mention it at all then?) that Kagan's a good egg based on his personal, private friendship with her.
Kagan, Elena. "Presidential Administration," 114 Harvard Law Review 2245 (2001).
Kagan, Elena & David Barron. "Chevron's Nondelegation Doctrine," 2001 Supreme Court Review 201 (2001).
Kagan, Elena. "When A Speech Code Is A Speech Code: The Stanford Policy and the Theory of Incidental Restraints," 29 University of California at Davis Law Review 957 (1996).
Kagan, Elena. "Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine," 63 University of Chicago Law Review 413 (1996).
Kagan, Elena. "Confirmation Messes, Old and New," 62 University of Chicago Law Review 919 (1995) (book review).
Kagan, Elena. "For Justice Marshall," 71 Texas Law Review 1125 (1993).
Kagan, Elena. "A Libel Story: Sullivan Then and Now," 18 Law and Social Inquiry 197 (1993) (book review).
Kagan, Elena. "Regulation of Hate Speech and Pornography After R.A.V," 60 University of Chicago Law Review 873 (1993).
Kagan, Elena. "The Changing Faces of First Amendment Neutrality: R.A.V. v St. Paul, Rust v Sullivan, and the Problem of Content-Based Underinclusion," 1992 Supreme Court Review 29 (1992).