The Great Kagan Supreme Court Debate
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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.
Goodman:Well, what about that, Professor Lessig, of her being a blank slate or hiding her views over these years?
Lessig:Yeah, so, it’s just wrong to say that she’s been hiding her views. What she’s been doing is doing her job. And I think what we need is a little bit of perspective here. You know, what’s most important, in my view, about what the President has done here is he’s appointed a non-judge, or he’s nominated a non-judge to the Supreme Court. And that’s extremely valuable. This Court is filled with former judges. And if there had been a non-judge, if there had been Justice O’Connor, who had been a politician before, or even a Justice Rehnquist, this Court would not have made its blunder in Citizens United, because it would have had a broader perspective and understanding about the political system.
Now, every non-judge that you appoint, Glenn Greenwald could make exactly the same criticisms of. We didn’t know anything about Lewis Powell, we didn’t know anything about Justice White, we didn’t know anything about Justice Douglas, we didn’t know anything about Justice—Chief Justice Rehnquist, when they were appointed, because all of them had had an experience that was not the experience of writing opinions in a wide range of cases that every single judge does. Now, we can decide we should never have anybody except judges on the Supreme Court, but I think that would be a big mistake.
Now, I don’t know about Jeffrey Toobin, but I spent four years sitting across the table from Elena Kagan three days a week listening to her spout very strong and, in my progressive views, very correct views about a wide range of constitutional issues. She’s written substantively about the First Amendment, which is an extremely important part of the Supreme Court’s jurisprudence. And contrary to Glenn’s characterization, her views about the president’s power, in the presidential administration article, are views that liberals and progressives should embrace, because they are exactly contrary to the view of the right-wing Bush-Cheney doctrine that says the president can do whatever he wants, Congress be damned. Her view is the president has this power, but only so long as Congress grants that power to the president.
So I think she has given us clear views in important areas. But more than that, she has spent her time, not blogging, not twittering, not trying to be out there in the forefront of every single legal issue, just doing her job, and doing it extremely well. She was an enormously successful dean, and she’s been enormously successful in every single job she’s had. I think progressives should be rallying around this woman and not making it seem like this is some kind of outrage that she has not spent twenty years writing opinions on a federal bench.
Greenwald:Nobody thinks that only judges should be appointed to the Supreme Court. That is a total straw man. You don’t need to be a judge to leave behind a record of what you believe about the great political and legal issues of the day. We’re talking to somebody right now named Larry Lessig, who has never been a judge, and yet has a very extensive record of scholarship to enable persons to know what he thinks about all of these matters. He’s here debating it now. Look at the alternatives that people were suggesting to Elena Kagan, numerous non-judges such as Harold Koh or Pamela Karlan, professors who, unlike Kagan, have a very lengthy record of advocacy and involvement in political and legal issues of the day. Not only has she never been a judge; she’s never really been a lawyer until she was solicitor general, in terms of being in court. So it’s an absolute blank slate.
Things that we do know about her—I mean, we can sit here and try and tell the audience what she really meant in that 2001 presidential administration article that’s very esoteric. We can each say different things. Just look at what people who aren’t a longtime friend of hers, like Professor Lessig or me, an opponent of her nominee, said. Neal Katyal, who’s her deputy solicitor general, wrote a law review article criticizing parts of what she wrote and said that, in essence, that she embraced parts of what—the precursor to the Bush-Cheney unitary theory. That’s what he said. William West, one of the nation’s foremost experts in administrative law and a professor of law at the University of Texas, said that it showed she’s a great fan of presidential power.
And in her confirmation hearing as solicitor general, she absolutely went beyond—went beyond—the state of the law as the Supreme Court has defined it and said that the president has the authority to detain as enemy combatants not just people detained on the battlefield, but also far away from any battlefield—she said the Philippines was the example she agreed to—and not just who are engaged in hostilities, but who are even providing material support or financing to terrorist groups. That is a very broad view of the president’s authority that is far beyond what the Supreme Court has said.
And, you know, the thing that I would ask Professor Lessig is, you know, you’ll notice that he’ll say things like “I know her. She’s a great progressive. Progressives should be excited.” Look at the most controversial issues that the Supreme Court has dealt with—Roe v. Wade, Bowers—overturning Bowers v. Hardwick, Citizens United, Bush v. Gore, the Hamdi and Hamdan decisions that define the scope of executive power. I’d ask him to identify anything that she said publicly that would give us evidence as to how she would have ruled on those issues. What did she say, and how does it reflect how specifically she would have ruled in those cases?
Goodman:Well, Professor Lessig, what about these issues of executive power, and specifically these cases that Glenn Greenwald has raised?
Lessig:Well, so, what did she say about Citizens United? She argued Citizens United for the government. She developed in that argument what I think is exactly the right justification for Congress to have the authority to balance the power of these enormous special interests, something that I know Glenn has written powerfully about. She stated that argument, and I believe she believes it.
Now, Glenn is right. The only basis I have for knowing what her views on each of these cases are is the context in which I’ve seen her discuss it, which has been the context of being a law professor. Now, she says what we need—Glenn says what we need is a law professor like me. We don’t need a law professor like me. And though I would support Pam Karlan or Harold Koh, I think Pam Karlan and Harold Koh are not the kind of justice that we need right now. I think when we are talking about the fifth justice, the justice who solidifies the majority that the non-right-wing wing of the Supreme Court has, then I’m going to be all for somebody like Pam Karlan, who has been an outspoken progressive pushing ideas like this. But if you go in with Glenn’s blazing on this Court and you identify yourself as a far-left version of a Justice Thomas, you’re not going to win one vote from the middle of that Court that you need to win to get to five votes.
And finally, it is just not—it’s just not the case that people coming from extremely important professions—for example, imagine a David Boies twenty years younger, who the President decides he wants to appoint because he thinks that we need somebody who has a good, practical understanding of the way litigation works. Well, such a person working inside of a law firm is literally not permitted to be articulating views about a wide range of issues that are not directly relevant to his or her practice. That was the case with Lewis Powell. Lewis Powell comes from practice. We didn’t know what his views were in a wide range of cases. That was the case with Whizzer White, with Justice Byron White, who again, we didn’t know his view in a wide range of cases, because he wasn’t in a position to be giving such a view.
Now we can’t—Glenn says we’re not against appointing non-judges. Well, if you adopt a standard that we can scream with outrage because he hasn’t—because a nominee has not written an op-ed on every single major issue that there is in constitutional law, then he is saying we cannot be appointing non-judges, because the number of non-judges who are going to be in that position, who are not crazies or extremists or, you know, people like me who can’t seem to stop himself from writing about everything there is to write about, the number of those people out there is three or four, and they’re not necessarily great Supreme Court justices. I think we have to recognize that we need a diversity. And the diversity that we need here right now is a practical judgment and ability to get four votes and turn them into five. And that’s something that, of all the skepticism that Glenn has raised, nobody has raised that skepticism, because there’s no basis for it.
Goodman:I wanted to ask Glenn Greenwald, this issue of diversity, slightly different than what Professor Lessig is raising. A group of law professors have openly questioned Elena Kagan’s diversity record at Harvard when she was the dean of the law school. During her time there, Kagan made thirty-two tenured and tenure-track academic hires. Of these thirty-two, only one was a person of color, only seven were women. Your comment on this?
Greenwald:Well, I’m going to defer to those law professors, because, number one, they’re tenured law professors at major law schools around the country and know, in and out, how the mechanics of hiring work, and secondly, they’re people who have devoted their careers to advocating for diversity, of the kind that the progressive community, and even the Democratic Party generally, has always had as a plank in its mainstream platform. And what they said is that if you look at Elena Kagan’s record as dean—and the hiring that she did is one of the things that is touted as proof that she’s able to bridge the communities and make conservatives like her—they called it, quote, “abysmal,” “indefensible for the twenty-first century” and “shocking” at how overwhelmingly white and male those hires were. Thirty-one out of thirty-two law professors who received tenure positions while at Harvard during her dean—tenure as dean were white. Now, I think that that is an issue that needs to be explored, and I’m going to leave it to those professors and other advocates, who know those issues better than I do and who have been dealing with them their whole careers, to raise those questions.
And, you know, the thing—let me just say this, which is, you know, you just heard in Professor Lessig’s answer to my question, I think, a lot of evidence about how you can’t know where Elena Kagan would fall on any of these positions. And in terms of this ability—and it relates to what you just asked me, Amy—to bridge the gap, the ideological gap on the Court, to know that, you would first have to know what her perspective is. Is she going to be agreeing with the liberal wing on these issues? He has no evidence that she will on these great issues. And secondly, there were judges and other people who have a history of crafting legal opinions that can attract conservative judges. That was the reason why I favor Judge Diane Wood. The fact that Elena Kagan at Harvard hired a bunch of right-wing professors and therefore made conservatives like her, that was a good thing she did, but that’s hardly evidence that once she gets on the Supreme Court she is going to be able to craft legal opinions that will attract conservative judges.
And I think underlying all of this is—you know, this is what I said after President Obama finally nominated her. I mean, I had been arguing against her nomination. But once he nominated her, I wrote that, you know, now that she’s nominated, the key thing is to learn as much as we can about her. And the thing that—one of the things I found most favorable about her was that in 1995 she wrote a very strong law review article condemning the nomination process as a vapid and hollow charade and said that it is imperative that nominees to the Supreme Court answer very specific questions about what their opinions are on cases and how they would approach the law. And I wrote that we should all keep an open mind and hope that she adheres to those standards.
Apparently, she says now that she’s changed her mind on that. She said that at her solicitor general confirmation hearing. The White House yesterday said she no longer believes that, that she’ll adhere to the conventions of the nomination process, which, by design, obfuscate what the nominee is, rather than illuminate what they are and how they think. And I think we’re not going to really end up learning any of the answers to these questions. And I wonder if Professor Lessig agrees that Dean Kagan—or Solicitor General Kagan ought to adhere to what she said in 1995 about a nominee’s obligations to answer these questions so that we can make an informed judgment.
Goodman:Well, Professor Lessig, answer that, and then go back to this issue of diversity. Presumably, you were one of those Harvard law professors who she brought to Harvard Law School during that time. But your response to the lack of diversity?
Lessig:Yeah, well, let me address the diversity issue. It’s good—I appreciate the respect that Glenn gives to law professors. I am a law professor, a tenured law professor. Let me tell you, law professors can be extraordinarily sloppy. And the analysis that was made of Elena’s, quote, “hiring record” is extraordinarily sloppy. The relevant question is, who are the people in the comparable institutions that were hired by Stanford or by Yale, who are minority or women, who Harvard did not make offers to and Elena didn’t try to persuade to come. And there just are no people in this list or no people that would support—no numbers that would support the basis to draw a suggestion that in some sense she’s being biased in her judgment.
In fact, while she was at the Harvard Law School, she launched one of the most aggressive programs to recruit young scholars into the teaching profession, in particular, in areas of civil rights. She launched a civil rights teaching program to bring people in and to give them the experience necessary to make it possible for them to become teachers. Now, that kind of experience is why people on all sides—this is not a law school where the conservatives love her; this is a law school where everybody in the law school, except one or two people who are known for their cantankerousness, love her, because she demonstrated that kind of commitment. And so, I think the sloppy analysis of a couple law professors that look at raw numbers, rather than actual figuring out what happened, shouldn’t weigh in here.
Now, I would love to have Elena’s honest views reported to the world, because, you know, again, my position is not that we should trust her views. I know her views. So I’m happy with her views. And I would be happy if everybody could see them. And I think I’d be extraordinary pleased if Glenn Greenwald would be in the position where he could see them, too, because I think he’s going to be pleasantly surprised, as well. But, you know, let’s be realistic about this. You know, we’re not living in a vacuum. I know we live in the Facebook generation where everybody thinks they can just put everything out in the world and there is no consequence, but in Washington there is an extraordinary consequence. And we liberals shouldn’t be so stupid about how we play the game, that every single thing we try to advance gets defeated by the obvious pattern of stalling and destruction that has become the character of the game in Washington. So if the White House makes a judgment about what the appropriate amount of discussion here is and can point back to examples of justices who stonewalled in exactly the same way—and my former justice, Justice Scalia, being the best example, refusing even to say whether he believed that Marbury v. Madison, the case that gave the Supreme Court the authority to strike down laws, was good law—I think that those kind of political judgments about how to navigate this process are judgments that are going to control. But I share Glenn’s desire that we know more. I shared Elena’s view in 1995 that we ought to know more. But we ought to actually be living in a political system where people can speak honestly about their views without them being taken out of context and misused. And I think, in this particular debate, we’ve seen a lot of that.
Goodman:Professor Lessig, there have been some memos that have come out of the Clinton archive now. This is from Politico, a ‘98 memo showing that Elena Kagan was among advisers encouraging Clinton to deny Medicare funding for abortions in cases of rape or incest, in part to avoid a messy battle with Republicans. At the time, Medicare rules covered abortion only where the mother’s life was in danger, and women’s groups and the Department of Health and Human Services wanted to expand the coverage. Also, the Associated Press revealed on Monday that in 1997 Kagan urged then-President Clinton to support a ban on late-term abortions at the time she was a White House adviser, an adviser to President Clinton. Your response to both of those?
Lessig:Yeah, and again, I think we have to recognize that people have a job, and the job is related to the person they’re working for. You know, God forbid that my memos to my justice, Justice Scalia, when I was a clerk, would come out and people would use them as a way to understand what my view of the law was. When I worked for Justice Scalia, my job was to craft arguments that would advance his view of the law, recognizing that he was the person who the president had nominated and then the Senate had confirmed, and I wasn’t that person. And in the same context, when you’re working as a presidential adviser to somebody like President Clinton, your objective is to advance President Clinton’s political agenda. There wasn’t a question about whether this is what the Supreme Court should view as legal or not. Those issues were off the table in this context. The question was, what was the political agenda? Now, the politics of President Clinton are different from the judgment about what the Constitution requires. And my confidence is about her ability to make a judgment about what the Constitution requires, not whether she’s a good political adviser to a president who happened to be in office ten years ago.
Goodman:Glenn Greenwald, your response? I think the White House is calling her a pragmatic progressive.
Greenwald:Well, of course, that’s what Barack Obama’s defenders call him, and look at some of the policies that this, quote-unquote, “pragmatism” has led to: a continuation of numerous Bush-Cheney policies of the most radical and controversial kind. And so, I tend to try and avoid these labels, and “pragmatism” is a term that Obama loyalists use to justify virtually anything and everything that somebody ends up articulating, even if it’s bad. “Well, that might be bad, but they’re being pragmatic.”
But I think, you know, really what this underscores is, look at how those memos just suddenly surfaced and shed new light on Elena Kagan. And perhaps there are good explanations for why she advocated positions that are very anathema to the Democratic Party’s position on these issues. Maybe they don’t relate to how she approaches judging. Maybe they do. And it underscores the huge question mark that is Elena Kagan.
And look, I respect Larry Lessig a lot, and if he says, in his judgment, after knowing her for twenty years, that she would make a good Supreme Court justice, that’s something people ought to listen to. But it’s certainly not sufficient, or even remotely sufficient, to make an informed judgment. I mean, if you know someone for twenty years, they generally advocate for you and have an opportunity to get to know you. That’s just human nature. But a citizen has to see evidence before putting someone on the Court for thirty to forty years, especially someone who could move the Court substantially to the right. And we simply don’t have anything beyond little snippets to let us know what kind of judge she would be, and that will continue to be disturbing to any rational person.
Goodman:Ten seconds to each of you. Final comment, Professor Lessig?
Lessig:Well, Glenn knows that he and I have been allies in criticizing the President for his, quote, "pragmatism,” and so there’s no disagreement here about the President’s mistake in some context. But again, we need to be realistic. If we had a person who plainly marked themselves as a far-left version of Justice Thomas, that person, even if confirmed, would not succeed in getting us the five votes that we need to win on important issues.