Thoughts about Kagan

Obama has nominated another justice for the Supreme Court, in this case one with a relatively limited record, which makes it difficult to draw good conclusions. But given that she is an Obama appointee I think we can assume she will be well left-of-center and rather authoritarian in her perspective.

First, let us cover the elephant in the room. Is Kagan gay and does it matter? Unfortunately many on the Right, who frequently remind me of adolescent boys who simply refuse to mature, seem to think that Kagan's sexual orientation matters. It does and it doesn't. It certainly doesn't tell us whether we should support her or oppose her.

Where it might matter is that it would make her more sympathetic to extension of equality of rights to homosexuals. That would be a good thing in my opinion. However, Kagan and the White House are playing a very different game. When a blogger at CBS news referred to Kagan as the first openly gay appointee to the Supreme Court the White House pounced on him in a very nasty way. The blogger, Ben Domenech, says he found the attack odd because the White House pounced on a blogger, "for someting mentioned in passed, and intended to highlight a political positive about a potential Supreme Court nominee."

The White House responded by saying this part of a series of lies about Kagan meant to impugn her reputation. Huffington Post blogger Sam Stein reports that "the White House reacted strongly to the assertion, relaying that Kagan is, in fact, straight." Yet I know gay writers who insist that Kagan is gay and are thrilled by her appointment.

But that worries me immensely. If Kagan is gay, but is being closeted about it, then I don't trust her on gay issues. To try and hide her own sexual orientation she could simply vote in a way that would be inconsistent with her own sexual orientation. I don't worry about a Supreme Court nominee who is gay but I would worry about one that is gay and trying to hide it.

And the way the White House responded is troubling. The blogger in question clearly thought Kagan is gay, as do many people who support her. Yet the White House acted as if being gay is some great slander or insult. About the only people who seemed convinced that being gay is a major insult or slander are the juvenile morons on the Right and the White House.

That sort of hysterical reaction certainly doesn't fit a White House that pretends to be enlightened about such matters. But in truth, Obama's talk on gay matters is rosy and fragrant but when it comes to carry through he's been nothing but a prick. The Obamatrons, however, will be reluctant to ever admit their messiah is a fraud. That's the problems with messiahs and true believers.

In the New York Times blog legal scholar Eugene Volokh says he thinks Kagan "might be more open to claims of presidential power than Justice Stevens was." He may be right and that is not a good thing. Surely after two terms of Dubya the last thing we want is a Supreme Court Justice who is "open to claims of presidential power."

Elsewhere Volokh says he thinks Kagan "might tolerate" further state "restrictions on pornography" he doesn't think she will go "much beyond restrictions on pornography that already fits within the 'obscenity' exception." Please note the obscenity exception is not in the First Amendment but was wholly created by the Supreme Court.

Charlie Savage, at the New York Times, reports that Kagan seems to be a fan of what I call the "imperial presidency." Before her official nomination he wrote:

Ms. Kagan also has a mixed record on executive powers, but one that suggests she might generally be more sympathetic toward the White House than Justice Stevens.

She worked as a White House lawyer during the Clinton administration, when it was facing off against a hostile Congress and seeking ways to act unilaterally. That experience shaped her major scholarly work, a 2001 law review article in which she explained and defended efforts by the Clinton White House to impose greater centralized control over executive agencies.

In the article, Ms. Kagan argued that even if Congress has given the authority to make a regulatory decision to an agency, the president has the power to control that decision unless a statute explicitly forbids him from interfering. She wrote that it was “ironic” that “self-professed conservatives” were associated with calling for stronger executive power in recent decades because a more robust presidency could achieve “progressive goals.”

Still, her defenders note that she also wrote, “If Congress, in a particular statute, has stated its intent with respect to presidential involvement, then that is the end of the matter.” And in 2007, she gave a speech celebrating the actions of Bush lawyers who battled the White House over the legality of the warrantless surveillance program.

That view appears to put Ms. Kagan in the camp that criticized the Bush administration for arguing that the president could bypass laws, but also left the door open to sweeping executive authorities as long as Congress can be plausibly said to have signed off on them.

Indeed, after Mr. Obama selected her to be his solicitor general, she publicly embraced an expansive interpretation of the Congressional authorization to use military force against Al Qaeda. Ms. Kagan also took a leading role on a legal team that has sought to suppress lawsuits using the state secrets privilege and fought a ruling granting habeas corpus rights to some detainees in Afghanistan.

In other words this is close to a continuation of the disastrous Bush interpretation of presidential powers. It certainly ought to worry anyone who prizes limited government and the Bill of Rights. This is especially true since, as Savage points out, retiring Justice Stevens "was a critical vote in a five-justice faction that rejected expansive assertions of executive authority by former President George W. Bush." Savage warns that if Stevens' "successor is more sympathetic to the vantage point of the Obama White House, the balance could shift to a new bare majority that is far more willing to uphold broad presidential powers."

Radley Balko, a well-informed critic of the rising police state, agrees and disagrees with Volokh. He agrees that Kagan would be a friend to expanded presidential powers and thinks she may be worse on the First Amendment than many conservatives. Radley warns that "Kagan's pro-government position extends to criminal justice issues, too. In her current position, Kagan and her subordinates have filed amicus briefs and argued the pro-prosecution, pro-law enforcement position in every criminal justice-related case to come before the Supreme Court since Obama took office."

Balko notes that Kagan's office "argued in favor of a federal law banning the sale of videos depicting animal cruelty, taking a broadly censorious position that First Amendment rights be balanced with 'societal costs.'" Legal scholars who start pushing the vague "social cost" theory to justify state intrusion are a very dangerous lot, in my opinion. The term is almost as meaningless as "social justice" and it is latched onto by would-be authoritarians on both the Left and Right precisely because it is so vague and meaningless. The fastest way to justify massively expanded state authority is to tie that expansion to a concept that can't be defined. If it can't be defined it can't be refuted, is how the authoritarians see it. It an excuse for a wish list of expanded powers for any second-rate resident of the White House (and we've pretty much had only second-rate residents for a long time now).

Balko notes that the Supreme Court "rebuked as 'preposterous' in an 8-1 opinion" Kagan's arguments. He says this means that Kagan is "more pro-censorship than Roberts, Scalia, Kennedy, or Thomas. (She also argued the pro-censorship position in Citizens United, but while no less troubling, that's less surprising.)" If Balko is right, then Volokh is wrong and Kagan is also a threat to the First Amendment. Balko says does fit "Washington's definition of a centrist: She'll likely defer to government on both civil liberties and regulatory and commerce issues."

From the perspective of the classical liberal I don't see much about Kagan to cheer. So far the most depressing thing I've heard is that she is about as good as one can expect from Obama.