The Great Kagan Supreme Court Debate

The following is a transcript of Amy Goodman's Democracy Now! interview on Wednesday with Glenn Greenwald and Lawrence Lessig. It has been edited for length and clarity.

Amy Goodman: If confirmed, the fifty-year-old Elena 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.

Elena Kagan’s nomination has divided progressives in part because so little is known about her judicial views. Her nomination sparked a heated debate between two noted legal commentators: Harvard Law professor Lawrence Lessig and constitutional law attorney and Salon blogger, Glenn Greenwald. Glenn first appeared on Democracy Now! last month making his case against Kagan’s nomination. Then on Monday, he was on our show again and then interviewed by Rachel Maddow that night on MSNBC. Right after Greenwald, Maddow interviewed Lawrence Lessig, who criticized what Greenwald had to say. This led to them both penning articles  criticizing each other, defending their position on Kagan’s nomination. Read Lessig's here, Greenwald's here

Now they join us together at the same time for a debate on Elena Kagan. Harvard Law professor Lawrence Lessig is joining us from a studio in Boston, and Salon blogger Glenn Greenwald is on Skype with us.

We welcome you both to Democracy Now! Let’s start with Professor Lessig. Why do you support Elena Kagan as the next Supreme Court justice?

Lawrence Lessig: Well, I think that from the experience I’ve had with Elena, which is now more than twenty years, I think that she has exactly the right values and exactly the right skill that this justice will need. This is the fourth justice in the non-conservative or non-right-wing bloc of this right-wing court. And what that means is she needs to have the ability to persuade the fifth, so that we can get five votes for values and positions that we believe in. And I think what she’s demonstrated more than anything else is she has exactly that skill.

Amy Goodman: Glenn Greenwald, your thoughts about Elena Kagan?

Glenn Greenwald: Well, it’s interesting. I’ve been arguing for essentially a month now that the principal problem with her is that it’s impossible to know what she thinks about virtually anything. She has a few law review articles she’s written, a couple of snippets of opinions she’s expressed, but, by and large, she’s a blank slate. We don’t know what she’s going to do on the Court. We have no clue.

And what’s interesting is, since her nomination was announced, if you look at venues that are very sympathetic to the President, the New York Times editorial page yesterday said that he might think that she’s a good person, but the public has no way of knowing that, because she’s spent twenty years hiding her philosophy. The columnist David Brooks said that she’s the kind of person who placed career advancement above any commitment to any opinions, and you can scour her speeches to find opinions and come up empty. Tom Goldstein, who’s a huge booster of hers, said that she’s the nominee about whom the least is known since at least David Souter, and we know the huge surprise that he produced. And even her friend Jeffrey Toobin in The New Yorker, who knows her for twenty years, said he’s happy for her personally, but he can’t comment on her nomination, because in all that time he’s never heard her express any opinion about any political or legal issue of consequence.

And what little we do know is somewhat troubling in some issues. On other issues, it’s actually encouraging. But I think the nomination process has to reveal a lot more about what she thinks and believes before anyone can make a rational assessment.