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Progressives Divided over Obama’s Nomination of Elena Kagan to Supreme Court

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President Obama is nominating Solicitor General Elena Kagan to the Supreme Court. He is scheduled to make the announcement this morning at the White House. Kagan would replace retiring Justice John Paul Stevens on the bench. If confirmed, the fifty-year-old Kagan would be the Court’s youngest member. She would become the fourth female Supreme Court justice in US history and the third on the Court’s current bench. She would also be the first justice in nearly four decades without any prior judicial experience. Legal blogger Glenn Greenwald and law professor Jamin Raskin debate the nomination of Elena Kagan. [includes rush transcript]

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

AMY GOODMAN: President Obama is nominating Solicitor General Elena Kagan to the Supreme Court. He is scheduled to make the announcement this morning at the White House. Kagan would replace retiring Justice John Paul Stevens on the bench. If confirmed, the fifty-year-old Kagan would be the Court’s youngest member. She would become the fourth female Supreme Court justice in US history and the third on the Court’s current bench. She would also be the first justice in nearly four decades without any prior judicial experience.

A New Yorker who grew up in Manhattan, Kagan earned degrees from Princeton, Oxford and Harvard Law School. She clerked for Justice Thurgood Marshall before working briefly in private practice. She left to teach law at the University of Chicago, where, according to the Washington Post, she was part of a group that tried to interest Barack Obama, then a part-time constitutional law lecturer, in committing to a full-time life in academia. She eventually joined the Clinton administration, first as an associate counsel and then as a domestic policy adviser. In 1999, Clinton nominated her for a seat on the US Court of Appeals for the DC Circuit, but the Republican-controlled Senate never brought her nomination for a vote before Clinton’s presidency expired. She joined the Harvard faculty as a professor and was shortly named dean, becoming the first female dean in Harvard’s history. Obama nominated her to solicitor general last year. She was confirmed by a Senate vote of 61 to 31, becoming the country’s first-ever woman solicitor general.

For more on Elena Kagan, we’re joined by two guests. Jamie Raskin is a professor of constitutional law at American University’s School of Law and a Maryland state senator. He’ll join us on the phone from Washington, DC. And we’re joined by Democracy Now! video stream by Glenn Greenwald, a constitutional law attorney and political and legal blogger for Salon.com.

Glenn, you’ve been writing about Elena Kagan, the announcement to come today at 10:00 a.m. Talk about Elena Kagan as Supreme Court justice, or what this would mean.

GLENN GREENWALD: Well, I think that, to begin with, it’s very difficult to know what it would mean, because she’s somebody who has managed to avoid taking a position on virtually every single issue of importance over the last two decades. And in order to know what the impact of a Supreme Court nominee will be, it’s important not only to assess them in isolation, but also relative to who they’re replacing. And there’s a very substantial likelihood that Kagan is more conservative than the justice she’s replacing, which is John Paul Stevens, which means even if she’s a relatively decent person and a good Democrat, the effect that she would have, very likely, is to move the Court to the right.

But I think the real issue is, we know virtually nothing about what she thinks about anything. She’s managed to remain a totally blank slate. She has no experience, not even just not as a judge, but even in court, in a courtroom. I mean, prior to becoming Solicitor General, she was barely ever even in a courtroom participating in any cases before judges. And so, it’s hard to see how she’s going to have the respect of or a good rapport with the other justices on the Court, given that her learning curve is going to be so steep. So, given all the other excellent alternatives that Obama could have chose, I think this is really quite an atrocious pick, though it remains to be seen if, in the confirmation process, we learn more about her, one way or the other.

AMY GOODMAN: Jamie Raskin, thanks for pulling over to the side of the road, as you’re driving, constitutional law professor at American University. This news just came down, that Elena Kagan will be the pick, in the last hours. Your response to President Obama’s choice?

JAMIN RASKIN: Well, good morning, Amy.

But I should start by saying I do know Elena Kagan from law school, from law reviews. She was a year ahead of me. But I’m actually quite enthusiastic about the President’s selection. I think that she’s got the opportunity to become a great Supreme Court justice in terms of a commitment to civil rights and civil liberties. Her writings about the First Amendment, I think, are absolutely first-rate and exemplary, and I think that when it comes to Bill of Rights issues, I think she will be, you know, an extremely strong justice. And because she was dean at Harvard Law School and made an effort to reach out to kind of moderates and conservatives there, I think she could potentially emerge as a consensus builder on the Court and be someone who, you know, forges a new majority of justices who want to push forward in terms of the civil rights and civil liberties of the people. So, you know, I know a lot of her career has been identified with the federal government, and that has been a trend with the recent justices. But I think that she brings enormous intellectual strength to the job, and so I’m quite enthused about it.

AMY GOODMAN: Well, let me ask Glenn Greenwald, on this issue of First Amendment rights, Jamie Raskin saying she’d make a superb justice. Your response?

Glenn? Looks like we’ve just about lost Glenn.

Well, let me — we’re going to get him back on, but Jamie Raskin, the issue of the solicitor general almost being considered the tenth justice, what about that? What role did she play? In fact, she argued about half a dozen cases before the Supreme Court as solicitor general, arguing for, of course, the government. That’s the role of a solicitor general.

JAMIN RASKIN: Yeah, I mean, the solicitor general actually commands a lot of respect among the justices. And so, she’s had relatively little courtroom experience, but it’s been in the place of singular importance, which is the Supreme Court itself. And so, I think that she will come onto the Court with the respect and the knowledge and the comfort of the other justices. And, you know, one hopes that she will have a very salutary effect on Justice Kennedy, in terms of opening up his mind and not constantly being pulled over to the right-wing side of the Court.

AMY GOODMAN: I think we do have Glenn Greenwald back. You hear Jamin Raskin is extremely positive about the potential of Elena Kagan as the next Supreme Court justice. Your response, Glenn Greenwald?

GLENN GREENWALD: Yeah, there’s lots of people who would have really good potential to be on the Court. There’s lots of really smart people. John Yoo is really smart. You know, David Addington is really smart. Lots of right-wing lawyers are really smart. So the fact that someone’s really smart doesn’t seem to be a particularly compelling reason to put them as the replacement for John Paul Stevens.

Also, this idea that she earned the love of conservatives at Harvard Law School while as dean because she hired a bunch of right-wing professors — almost all of whom were white, as several minority law professors noted over the weekend; she has a horrible record on diversity — is really quite a silly grounds for claiming that she’d be able to build a consensus on the Supreme Court. I mean, hiring right-wing professors at Harvard is a completely different skill than crafting judicial opinions that attract conservative justices on the Court, something that she has displayed absolutely no ability to do because her career is completely bereft of any kind of experiences.

And I’d like to ask any supporter of Elena Kagan, including the gentleman with whom we’re talking, to identify any positions that she’s expressed on some of the great issues of the day. What has she said, for instance, about the Bush-Cheney theories of executive power under Article II or the ability to circumvent statutes by claiming war powers or the idea that the whole world is a battlefield and the President can exert war powers? I mean, if you’re trying to persuade progressives that she’s going to be a good justice, point to specific positions that she’s defended and articulated about these issues and about what her approach on the Court will be to interpreting the Constitution. What can you point to specifically and concrete beyond just “Well, I know her and like her and think she’s very smart”?

AMY GOODMAN: OK, the gauntlet has been laid down. Jamin Raskin?

JAMIN RASKIN: Well, again, I mean, the point is correct that a lot of people have been nominated to the Court from both parties who are pretty closely identified with executive power, and that’s kind of an overall historical trend. You know, Elena Kagan is the Solicitor General of the United States, so she’s going to be defending the positions of the executive branch and the Department of Justice. And she has not written broadly about, you know, the question of executive power or the national security state the way someone like Harold Koh has done. But for just that reason, given the dynamics of this appointment process, someone like Harold Koh is going to have a very tough time getting through the process. And obviously that was a consideration taken into account by President Obama.

So, you know, I wish I could give more comfort to Glenn on this question than I can, but having said that, I am certain that she will be a very staunch champion of civil liberties and civil rights on the Court and would expect her to be with the liberal justices on the most important questions dealing with the rights of the people. And as to the other stuff, we just have to see how it evolves and to push things as much as we can to try to restore a proper balance among the branches and make sure that, you know, the prerogatives of the legislative branch are respected, you know, in the United States. Short of that —-


JAMIN RASKIN: — no, I can’t bring much consolation on that point, because we just don’t know.

AMY GOODMAN: Glenn Greenwald?

GLENN GREENWALD: First of all, you see here the big difference between progressives and conservatives. Conservatives, when they had an opportunity to appoint someone to the Court, picked Sam Alito and John Roberts, people with very long and clear records of devotion to the right-wing judicial ideology and were not just willing, but eager, to defend that, whereas progressives take the opposite position: “Oh, we’re too afraid to put somebody on the Court who has a paper trail where they advocate for the positions that we hold. We need to pick someone instead who’s a totally blank slate and just hope against hope that maybe they’ll turn out the way that we want.”

But let me ask again, because you’re on here trying to assure people that she’s going to be this wonderful, great justice on the Supreme Court to replace Justice Stevens. You say, well, you can’t give any assurances about any specific views that she holds. Well, that’s a pretty huge deficiency in the case in favor of Kagan. So let me ask you again — you’re here to say that she’d make a great justice — what positions or views has she ever expressed about any of the important issues of the day, politically or judicially, especially judicially and constitutionally, that would lead a rational person to be able to say, “I’m comfortable with how she’s going to be a judge on this court and will actually be the kind of judge that I worked so hard to elect Democrats in order to appoint”?

AMY GOODMAN: Jamin Raskin, you said that she was a great defender of the First Amendment. Can you talk about some of her positions there? Also as solicitor general, arguing around the issue of Citizens United v. Federal Election Commission, which of course was about corporate money in politics?

JAMIN RASKIN: Yeah. Well, again, you know, she’s not been a judge, so she doesn’t have the judicial track record or the paper trail that we can go back and say she decided this way or she decided that way, so this point is correct. However, if you read her law review articles, which I have, I think what comes through is a very powerful understanding of the Bill of Rights as being a charter of freedoms and liberties for the American people and that, you know, I feel absolutely confident, if you read especially her writings on the First Amendment, that she will be a very stalwart articulator of the Bill of Rights as being a protection of all the rights and the liberties of the people against arbitrary governmental power and interference.

GLENN GREENWALD: Well, be specific. Be specific. What view on the First Amendment and the Bill of Rights did she express that leads you to believe that?

JAMIN RASKIN: Well, for example, I mean, her core position on the First Amendment is that any time that the government engages in policy whose purpose is to interfere with the right of the people to decide themselves on important questions of public policy, that the governmental interference is itself illegitimate. So, you know, rather than saying that you look simply at the effects of a governmental action, you look also at what the purpose behind the governmental action is. I mean, this was sort of her core insight that she developed in her writings on the First Amendment. That gives you a very expansive and categorical view of First Amendment rights, and I think that she carries that through to the other rights that are contained in the Bill of Rights.

Now, you’re saying, well, we don’t — you know, she hasn’t been a judge, so we don’t know exactly how she would come down, and I suppose that that’s true.

GLENN GREENWALD: No, that — actually, I’m saying — what I’m saying is because most law professors, by definition, engage in scholarship. They write lengthy articles, and they engage in public debates. For example, Cass Sunstein and Harold Koh and John Yoo, these are all law professors who left a long record of what they believe on these issues. So she doesn’t have to be a judge. She’s been a law professor. She’s been in political office. What she should —- we don’t have to be a judge to know somebody’s views on the Constitution. I’ve never been a judge, yet anyone who reads what I write will know my views on the Constitution. So what has she ever done, in academia or politics, to let somebody know, for example, what her views are on the keys issues surrounding the Bush-Cheney executive power theories or how the Bill of Rights get interpreted or choice issues or anything else like that? I mean, identify a single thing.

JAMIN RASKIN: OK, well, I mean, you know, perhaps it would satisfy you the position that she took in the Citizens United case, where she defended the McCain-Feingold electioneering communications provisions of the BCRA, the Bipartisan Campaign Reform Act, and took a very strong position that corporations do not have an unlimited free speech right to spend money in politics. And so she defended -—

GLENN GREENWALD: Yeah, but that’s a totally — that’s a totally illegitimate point to raise, because defenders of Elena Kagan will say, correctly, that it’s unfair to hold against her the positions she advocated as solicitor general defending Obama’s broad executive power theories, indefinite detention and the like, because her duty as solicitor general is to defend the government’s policy, whatever that policy is, and it’s unfair to assume that the positions she took as a solicitor general is the one that she actually holds. So if it’s unfair to attribute to her the bad positions she took as solicitor general, it’s also unfair to attribute to her the good positions that she took as solicitor general, such as, at least in your view and in the view of a lot of progressives, the positions she took in Citizens United. I mean, that doesn’t really — she’s just acting as a lawyer there. Her duty is to defend the administration’s position, regardless of what she thinks. That doesn’t provide any insight into how she actually thinks or believes as an independent person.

JAMIN RASKIN: Mm-hmm. Well, all I can say there is if you don’t want to credit her with any positions or blame her for any positions she took as solicitor general, and we can’t — and you don’t want to base anything on what her academic writings have actually been and the theoretical positions she’s taken as an academic, then —-

GLENN GREENWALD: No, we should look at that. We should look at that. The question is, what has she actually said on any important issues that would enable someone to know where she would come down on these questions, the way you would know where Diane Wood would come down or where Harold Koh would come down or even where Merrick Garland or anybody who has actually taken positions over the last two decades, instead of refraining from doing so out of sort of an overly cautious careerism that seems to guide her.

JAMIN RASKIN: Alright, well, all I can say is if you read her law review articles -— I imagine you have —- I think you should be satisfied about where she is in terms of due process, equal protection, the First Amendment, and so on. Or, I mean, I can reverse the question and ask of you, is there anything that she’s written that suggests to you that she would be a problematic force on the Court? And I just don’t see it, in any way.

GLENN GREENWALD: Well, first of all, one of the advantages that somebody has -—

AMY GOODMAN: Glenn Greenwald.

GLENN GREENWALD: One of the advantages that somebody has when they live a life the way that she’s lived, which is remaining completely silent and uninvolved in most of the important political and legal disputes, is that nobody can know anything that you think. And so, that, you know — the burden is on those who want to advocate for her elevation to the Court as a replacement for John Paul Stevens to point to evidence as to why she would be good.

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. And the current deputy solicitor general, Neal Katyal, who is far from a liberal or a leftist, actually said that the position that she took represented an extreme devotion to executive power. And she was — a professor, a specialist in administrative law, was quoted in the Boston Globe when she was nominated for solicitor general, saying, based on that, she’s clearly a fan of presidential power.

But, I mean, it is true that — that you’re right. There’s virtually nothing that she’s said or done that can lead anyone to know. You have to cobble together very incomplete pieces. And that’s the reason why her nomination is so disturbing, because she could be a good justice, or it’s very easy to imagine her not being a good justice, and why would any progressive possibly want to take a crapshoot on replacing the person who, for better or for worse, is the leader of the liberal wing of the Court, to the extent such a thing exists? That’s what she is. She’s a crapshoot and a blank slate. And I don’t see why anyone would accept that.

AMY GOODMAN: Glenn Greenwald, one of the ways she will be criticized by the right is a strong position she took as the Harvard Law School dean not allowing ROTC to recruit because of its policy around “Don’t Ask, Don’t Tell.” She took a stand challenging the Solomon Amendment, which required universities that receive federal funding to cooperate with military recruiters on campus. In filing a friend of the court brief opposing the amendment, she and others at Harvard argued that the military’s ban on gays violated the law school’s right to prohibit employers who discriminate on the basis of sexual orientation. And when the US Court of Appeals on the Third Circuit ruled the amendment unconstitutional, she directed the school’s Office of Career Services to stop providing help to military recruiters. Your response to that?

GLENN GREENWALD: Yeah, I’ll give her credit there. That’s actually one time in the last twenty years where she actually did take a position. She opposed “Don’t Ask, Don’t Tell” and, along with numerous other deans of academic institutions, banned the military from recruiting on campus, on the grounds that their policy was discriminatory. That — and so I will give her credit that she actually does oppose “Don’t Ask, Don’t Tell,” though that doesn’t provide much insight into how she’ll rule about things on the Court. But even there —-

AMY GOODMAN: She also said -— just to say for the record, she said the military’s ban on gays is, quote, “a moral injustice of the first order.” And she said, “The importance of the military to our society — and the extraordinary service that members of the military provide to the rest of us — makes the discrimination more, not less, repugnant.”

GLENN GREENWALD: Right. But even there, look at what she did. She banned recruiters from campus, but then the federal government, once the Solomon Amendment was enacted and once it was upheld as constitutional, Harvard Law School faced the loss of a couple hundred millions of dollars out of — in federal government money, out of an endowment of $60 billion that that college has, and the minute there was a cost to this, you know, crusade of — moral crusade of the first order, as she called it, she immediately reversed herself and allowed recruit — [no audio]

AMY GOODMAN: Ah, we’ll just get him back on the phone in a minute. We’re going to break, because we’re late on that break, and we’ll come back to this discussion. Then we’re going to go down to the Gulf to talk about what’s happening with BP, and then a major case involving Chevron.

This is Democracy Now!, democracynow.org, the War and Peace Report. Our guests, Jamin Raskin, professor of constitutional law at American University’s School of Law, also he’s a Maryland state senator, and Glenn Greenwald. He’s actually speaking to us from Brazil by Democracy Now! video stream, so we’re having a little trouble with that. He’s a constitutional law attorney, as well, and a political/legal blogger at Salon.com.

Let’s go to a little Lena Horne.


AMY GOODMAN: Glenn Greenwald, we just lost you at the point where you were saying that the attack she’s going to get on not allowing ROTC at Harvard Law School for its discrimination against gay men and lesbians was not as strong as it seemed. Why not?

GLENN GREENWALD: Right, because essentially what happened was the federal government said that any law school or academic institution that bans military recruiters from campus will lose a certain portion of federal funding, and so once that law was upheld as constitutional, Harvard Law School faced the loss of a couple hundred millions of dollars, out of an endowment of $60 billion that the college has. So the minute there was a cost to this great moral stand that she was taking, she immediately reversed herself and allowed military recruiters to come onto campus. That doesn’t sound like much of a commitment to a moral position to me, abandoning it the minute there’s a cost to it.

AMY GOODMAN: And finally, her position on an advisory panel around Goldman Sachs? And we just have thirty seconds.

GLENN GREENWALD: Yeah, she was on an advisory panel. She was paid a stipend of $10,000 per year. She was on — [no audio]

AMY GOODMAN: Having a lot of trouble with that video stream today. Glenn Greenwald —

GLENN GREENWALD: It was mostly a cursory position.

AMY GOODMAN: Repeat what you were saying, Glenn.

GLENN GREENWALD: Yeah, it was mostly a cursory position, but it reflects the fact that she’s where she is. She’s one of the elites who Goldman Sachs touted, and she was happy to take their money in order to serve on a sort of symbolic panel. I think that tells you somewhat about who she is.

AMY GOODMAN: Well, we’re going to leave it there. Glenn Greenwald, constitutional law attorney and blogger for Salon.com. This is Democracy Now!, democracynow.org, the War and Peace Report. The reports are all that President Obama will nominate Elena Kagan today to replace John Paul Stevens on the Supreme Court.

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