When President Obama taps Solicitor General Elena Kagan as his nominee to replace retiring Supreme Court Justice John Paul Stevens this morning, he will be will making a cautious choice that runs the risk, in the words for former National Lawyers Guild president Marjorie Cohn "move the delicately balanced court to the Right."
Attorney General Eric Holder may believe that Kagan will "be a great justice."
And there is no particular reason to argue with the assessment from People For the American Way President Michael B. Keegan, who said Monday that: “Elena Kagan is a bright and clearly qualified nominee."
But Keegan stopped short of a full embrace of the pick.
"I look forward to the confirmation process and learning more about the judicial philosophy she’ll bring to the high court," the head of the liberal watchdog group, which has a long and admirable record of monitoring court picks. “This confirmation process presents a unique opportunity for a dialogue about the role of the Court and the meaning of our Constitution. Over recent years, the Roberts Court has pushed a political agenda from the bench, favoring corporations and powerful interests over the rights of ordinary people. We’ve seen longstanding Constitutional principles and laws designed to protect families and individuals casually tossed aside in pursuit of a rigidly conservative ideology.
Keegan says he looks forward to a "national conversation" about the Kagan nomination, and so should we all.
That conversation should begin with an honest admission that Kagan’s record does not suggest that she will be as great, or as liberal, as Stevens.
Cohn, a Thomas Jefferson School of Law professor, has raised alarm bells with regard to Kagan.
"The founders wrote checks and balances into the Constitution so that no one branch would become too powerful. But during his "war on terror," President George W. Bush claimed nearly unbridled executive power to hold non-citizens indefinitely without an opportunity to challenge their detention and to deny them due process. Three times, a closely divided Supreme Court put on the brakes. Justice Stevens played a critical role in each of those decisions. He wrote the opinions in Rasul v. Bush and Hamdan v. Rumsfeld and his fingerprints were all over Boumediene v. Bush," she explained on the eve of the nomination.
"Unfortunately, President Barack Obama has continued to assert many of Bush’s executive policies in his ‘war on terror,’" adds Cohn. "Elena Kagan, reportedly Obama’s choice to replace Justice Stevens, has never been a judge. But she has been a loyal foot soldier in Obama’s fight against terrorism and there is little reason to believe that she will not continue to do so."Of particular concern to Cohn was that fact that, during her confirmation hearing for solicitor general, Kagan agreed with Senator Lindsey Graham that the president can hold suspected terrorists indefinitely during wartime, and that the once narrow scope of "battlefield law" could be expaned to apply globally in a "war on terror" moment.