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Glenn Greenwald on Why Elena Kagan Would Shift the Supreme Court to the Right and the Death of Dawn Johnsen’s OLC Nomination

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On Capitol Hill, speculation is growing over who President Obama will nominate to replace the retiring Supreme Court Justice John Paul Stevens. Speculation has centered on three top contenders: Solicitor General Elena Kagan, US Appeals Court Judge Merrick Garland and US Appeals Court Judge Diane Wood. But the White House says about ten candidates remain under serious consideration. Salon.com blogger Glenn Greenwald joins us to talk about some of the contenders, in particular Elena Kagan. [includes rush transcript]

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This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: Glenn Greenwald, I’d like you now to go through talking about who — how you evaluate some of these candidates. Your latest blog is called “The Case Against Elena Kagan” at Salon.com. Why?

GLENN GREENWALD: I think the starting point has to be that the three nominees, likely nominees, identified correctly by Nan Aron as the frontrunners — Elena Kagan, Judge Garland and Judge Wood — of the three, none of them would be more progressive than Judge Stevens. I don’t think there’s a single person anywhere who would suggest that that’s the case. There are a couple of possibilities, like Harold Koh and Pamela Karlan, whom Nan also discussed, who very well may be as progressive as, if not more progressive than, Justice Stevens, but most people believe that they’re not really viable choices. But the three frontrunners certainly are not more progressive than Judge Stevens.

And I think it’s very clear that two of them, Elena Kagan and Judge Garland, would actually be more conservative, perhaps much more conservative, than Justice Stevens would be. So what we’re talking about, if either of those two individuals are chosen — Elena Kagan, the current Solicitor General, or Judge Garland — what you’re really talking about is the effect of moving the Supreme Court to the right. Remember, this is a Supreme Court that’s already dominated by conservatives. You have Justices Scalia, Thomas, Roberts and Alito forming a basically impenetrable right-wing bloc, with Justice Kennedy, who was a Reagan appointee, frequently joining them. [no audio]

AMY GOODMAN: We’re talking to Glenn Greenwald, but we are talking by video stream, so sometimes it just gets caught up for a second.

Glenn, keep going.

GLENN GREENWALD: So we’re talking about the very real possibility here that President Obama, a Democratic president who progressives worked very hard to elect, with a Senate of fifty-nine Democrats, could actually move the Court to the right.

And what I’ve been focusing on is the record of Elena Kagan, because it’s well known that Judge Garland is clearly a moderate to conservative justice, and he has a long record of judicial opinions that people can go and read and see where he falls on the spectrum. Elena Kagan actually has very little record to speak of that would enable anybody to know where it is that she falls on the political spectrum.

And I think that issue, the fact that she has so little record, is disturbing in and of itself. I mean, why would progressives or Democrats, with an opportunity to replace somebody like Justice Stevens, possibly want to take a huge risk of appointing somebody to the Court whose judicial philosophy can’t really be discerned, because she’s spoken out almost never on most of the key constitutional and legal questions of the day? And that even includes, over the last decade, when there was an assault on the Constitution and the rule of law by the George Bush administration, and virtually every law professor, academician, anyone of note in the legal community, spoke out against what it was that Bush and Cheney were doing. She was completely silent. You can’t find a single utterance from her, in writing or orally, where she expressed a view one way or the other on the radical executive power claims of the Bush administration.

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.

So I think there are a lot of reasons to be extremely worried about the prospect of the nomination of Elena Kagan, and the fact that she has very little record is, by itself, disturbing, and the little record that she has is even more so.

AMY GOODMAN: Why do you think she has moved to the forefront? There’s been a big discussion about the fact that she has so much bipartisan support, Glenn.

GLENN GREENWALD: Well, we know that this administration loves the idea of pleasing conservatives, and anybody who is pleasing to conservatives is somebody who is much more attractive as a political appointee than somebody who is perceived as liked by the left. I mean, one of the very few important nominees that a President Obama made to an important position, Dawn Johnsen, was somebody — who was liked by the left, was someone whose nomination was left to linger for fourteen months and just abandoned. She was the nominee to head the important office of OLC.

So, Elena Kagan is perceived as someone who is very good at accommodating right-wing perspectives. She did when she was the dean of Harvard Law School. And at her confirmation hearing for Solicitor General, Republicans couldn’t praise her lavishly enough. I mean, she had a colloquy with Lindsey Graham, the Republican senator from South Carolina, where they were in complete agreement on virtually every issue involving terrorism and executive power. And even the furthest right-wing polemicist, like Bill Kristol and Ed Whelan, who currently writes for National Review and was a lawyer in Bush’s Office of Legal Counsel, have praised her quite, quite emphatically as someone whose views on national security and terrorism and civil liberties they find quite palatable.

On top of that, she is a steadfast Obama loyalist. She spent the last fourteen months defending his administration and the positions that his administration has taken and the Supreme Court. She’s somebody who clearly likes executive power, which, if you’re Barack Obama, who has asserted broad theories of executive power, will be attractive on the Court. And simply politically, it’s easier to get confirmed someone who’s perceived as being, and who is, a moderate, or even a conservative, than it is to get someone confirmed who is a liberal. And for those reasons, I think that nominee might be very appealing, politically and substantively, to the Obama White House.

AMY GOODMAN: [inaudible] a blog about the death of Dawn Johnsen’s nomination and the significance of her withdrawing from being a nominee to head the Office of Legal Counsel. Why is this such a significant position? And why do you think — and do you think — she was forced out?

GLENN GREENWALD: Well, the Office of Legal Counsel is incredibly important. It’s essentially the office within the Justice Department that determines the scope and limitations of presidential authority. It’s the office that George Bush and Dick Cheney used, for example, to legalize torture and warrantless eavesdropping, because opinions issued by that office become the binding opinion of the executive branch. So it’s the office that is charged with opining about the proper limits of executive authority, what the President can and can’t do under the law and the Constitution.

What made Dawn Johnsen’s appointment as OLC chief so extraordinary and something to celebrate — and I did celebrate it when it was announced back in January of 2009 — was that she was one of the most vocal opponents of the Bush assault on the rule of law and the Constitution. And not only was she an opponent of it — [no audio]

AMY GOODMAN: Again, Glenn Greenwald, sometimes we lose him for a second.

Go ahead, Glenn. Keep going.

GLENN GREENWALD: Sure. She was such an opponent of what Bush and Cheney were doing, not just legalistically, but she was arguing that it ought to provoke much more outrage among the citizenry than it was. And she especially was vehement about the fact that whoever succeeded George Bush could not possibly take the position that we should just move on from those crimes, that instead we have to have full disclosure, allow courts to adjudicate whether or not what was done was illegal, in order to restore national honor. And so, she was really, for Washington, a very outspoken advocate of the rule of law and of the idea that what Bush and Cheney did was not just wrong, but radical and extremist and dangerous and tyrannical.

And what’s interesting is, is that when she was appointed, she seemed like a natural choice for Obama, because candidate Obama echoed many of those same themes. But as the Obama administration went on and it became apparent that what candidate Obama said bore very little resemblance to what President Obama was actually doing — he wasn’t just — he wasn’t repudiating Bush-Cheney executive power theories, he was embracing them — it became clear that the Obama administration would have a very difficult time having someone like Dawn Johnsen head an office like the Office of Legal Counsel.

And even though they had the votes throughout much of 2009, when they had sixty Democratic votes in the Senate, plus Senator Richard Lugar, the GOP senator from Indiana, her home state, who also said he would vote for her nomination, they never brought her up for a vote. They let her linger. And they never did anything in order to secure her confirmation. And finally, she withdrew.

And the reason it’s so significant is because it means that somebody who has her views, that the rule of law actually matters, that when presidents break the law we have to have accountability and not say, ‘Well, we just need to move on,’ the way that President Obama has done, it basically means that somebody like that can’t be confirmed to an important office and that the Obama administration doesn’t want somebody like that in a position of influence and authority. And I think it’s quite a revealing moment.

AMY GOODMAN: Glenn, the significance of Justice Kennedy being the one to choose the person writes the decision if the chief justice is not in the majority?

GLENN GREENWALD: Well, of course, Justice Kennedy has been the key swing vote on most of the important issues over the last decade, and on — and it’s a sign of how conservative this Court has become that he’s actually considered a moderate. I mean, he was a solid right-wing choice by President Reagan, and yet he has been the key vote on most of the executive power decisions of the last decade imposing some restraints on what the President can actually do.

And the ability of Justice Kennedy to choose who writes the opinion, I think, illustrates how important of a voice he’s become and how important it is to have somebody who will at least maintain the balance of the Court, replace Justice Stevens in a way that doesn’t shift the Court to the right. And I think that ought to be the principal concern of all progressives.

AMY GOODMAN: Finally, who would you like to see as Supreme Court justice, Glenn Greenwald?

GLENN GREENWALD: Well, I think the choices that I’d like to most see are probably ones that aren’t going to happen, as I indicated earlier. Harold Koh, the former dean of Yale Law School, and Stanford Professor Pamela Karlan, and even Leah Sears, the former chief justice of the Georgia Supreme Court, are all exceptionally intelligent and capable justices who have indicated, through a long record, that they approach the law and the Constitution similar to the way that Justice Stevens does.

Among the three frontrunners, Diane Wood is a brilliant judge, and she’s been viewed as the sort of liberal, intellectual alternative to the conservative judges on the Seventh Circuit, like Judges Posner and Easterbrook. And of the three frontrunners, she is clearly the one that progressives ought to be hoping that Barack Obama nominates.

AMY GOODMAN: Finally, Nan Aron, if you haven’t left, very quickly, the involvement of right-wing groups in decisions around who should be chosen, and the significance of a confirmation hearing coming up for an appeals court judge this Friday?

NAN ARON: Well, I wanted to say, I think Glenn has very accurately portrayed the role of these groups in sinking Dawn Johnsen’s nomination. And over the past few days, many of these same individuals have been whispering sweet nothings into the ears of the press and senators about various nominees to the Supreme Court. I think we have to accept the fact that no matter who the President puts up for the Supreme Court, they will resist, they will oppose, they will do whatever they can to defeat that candidate. And therefore, I think this is an opportunity for the President to choose someone that he likes, that would suit the country as a whole, and not take into account the comments and words of various groups on the right whose only goal is to defeat not only this nomination, but, frankly, the President’s entire political agenda.

AMY GOODMAN: Nan Aron, I want to thank you for being with us, president of the Alliance for Justice, and Glenn Greenwald, constitutional law attorney and blogger for Salon.com.

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