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Glenn Greenwald: Why Elena Kagan Would Be a Dangerous Pick For the Supreme Court

While we know relatively little about the frontrunner in the nomination race, she is a darling of conservatives, aligns with Sen. Lindsey Graham, and loves executive power.
 
 
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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. 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 U.S. is waging a worldwide war.