Kagan's Public Record Does Not Demonstrate She Will Be To The Right Of Stevens

Glenn Greenwald approvingly links to Jonathan Turley's statement (see also Jeralyn) that:

President Obama has decided to nominate someone who is demonstrably more conservative than [Justice Stevens] on some issues [. . .]

Turley refers specifically to Kagan's stated views on preventive detention and designation of enemy combatants. I think Turley's claim is inaccurate. Whether one agrees with Kagan's views on the matter, what is clear is that Kagan's stated views do not diverge from Justice Stevens' stated views on this issue. To understand this point, it is necessary to review Justice Stevens' opinion in Hamdan v. Rumsfled and the dissenting opinion of Justice Scalia, which Justice Stevens joined in Hamdi v. Rumsfeld. Let's consider these opinions on the flip.

In Hamdi, decided in 2004, Justice Stevens joined the dissenting opinion written by Justice Scalia.In Hamdi, Justice Scalia wrote:

Where the Government accuses a citizen of waging war against it, our constitutional tradition has been to prosecute him in federal court for treason or some other crime. Where the exigencies of war prevent that, the Constitution’s Suspension Clause, Art. I, §9, cl. 2, allows Congress to relax the usual protections temporarily. Absent suspension, however, the Executive’s assertion of military exigency has not been thought sufficient to permit detention without charge. No one contends that the congressional Authorization for Use of Military Force, on which the Government relies to justify its actions here, is an implementation of the Suspension Clause. Accordingly, I would reverse the decision below.[. . .] The allegations here, of course, are no ordinary accusations of criminal activity. Yaser Esam Hamdi has been imprisoned because the Government believes he participated in the waging of war against the United States. The relevant question, then, is whether there is a different, special procedure for imprisonment of a citizen accused of wrongdoing by aiding the enemy in wartime.

Scalia's dissent is premised on the idea that a citizen of the United States can not be declared an "enemy combatant" and instead must be tried in federal court for Treason. It is not clear that Scalia (or Stevens for that matter) would view the matter differently for non-citizens captured in the United States. Since the issue in Hamdi was whether the Executive can overrule the right to petition for a writ of habeas corpus, there is no logical reason to think that this reasoning should apply only to citizens, as the writ is available to all person held by the government in the United States (on what constitutes being held in the United States, see Rasuland Boumediene.

The opinion of the Court in Hamdi stated that:

At this difficult time in our Nation’s history, we are called upon to consider the legality of the Government’s detention of a United States citizen on United States soil as an “enemy combatant” and to address the process that is constitutionally owed to one who seeks to challenge his classification as such. The United States Court of Appeals for the Fourth Circuit held that petitioner’s detention was legally authorized and that he was entitled to no further opportunity to challenge his enemy-combatant label. We now vacate and remand. We hold that although Congress authorized the detention of combatants in the narrow circumstances alleged here, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker.

Thus Hamdi posits that the government can declare an American citizen (and any other person) captured on American soil (and presumably abroad)) an enemy combatant but that such person has the right to challenge such designation before a neutral decisionmaker.

In Hamdan, Justice Stevens wrote for the Court:

On September 11, 2001, agents of the al Qaeda terrorist organization hijacked commercial airplanes and attacked the World Trade Center in New York City and the national headquarters of the Department of Defense in Arlington, Virginia. [. . .] Congress responded by adopting a Joint Resolution authorizing the President to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks … in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” Authorization for Use of Military Force (AUMF), 115 Stat. 224, note following 50 U. S. C. §1541 (2000 ed., Supp. III). Acting pursuant to the AUMF, and having determined that the Taliban regime had supported al Qaeda, the President ordered the Armed Forces of the United States to invade Afghanistan. In the ensuing hostilities, hundreds of individuals, Hamdan among them, were captured and eventually detained at Guantanamo Bay.

[. . . A] Combatant Status Review Tribunal (CSRT) convened pursuant to a military order issued on July 7, 2004, decided that Hamdan’s continued detention at Guantanamo Bay was warranted because he was an “enemy combatant.” [. . .]

(Emphasis supplied.) Justice Stevens then proceeds to decide that the military commissions established by Congress were not eligible for trying Hamdan for the charges presented by the government. (See generally this post for more on that decision.)

Nowhere has Justice Stevens ever opined on whether the government can declare persons captured overseas as enemy combatants. Thus, Jonathan Turley is wrong when he writes "Stevens was the fifth vote in opposing such policies." That simply is not true.

Moreover, Kagan has never expressed the view that "anyone suspected of helping finance Al Qaeda should be stripped of protections and held under indefinite detention without a trial — agreeing with the Bush Administration. . . ." To the contrary, as I have repeatedly pointed out, Kagan said something quite different:

GRAHAM: [. . .] Now, the point we have to make with the world, would you agree, Dean Kagan, is that the determination that led to the fact that you're an enemy combatant has to be transparent?

KAGAN: It does, indeed.

GRAHAM: It has to have substantial due process.

KAGAN: It does, indeed.

GRAHAM: And it should have an independent judiciary involved in making that decision beyond the executive branch. Do you agree with that?

KAGAN: Absolutely.

GRAHAM: So we can go tell the world that this person is being held off the battlefield, not because one person says so, but because there's a process that led to that determination where you have an independent judiciary involved. Do you think that's important for the nation to make sure we have that kind of process?

KAGAN: I do, Senator.

(Emphasis supplied.) Elena Kagan is in large part a blank slate in terms of her public views. She needs to answer questions filling that slate. But it is simply inaccurate to say that her stated views on enemy combatants and indefinite detentions place her to the right of Justice Stevens.

Elena Kagan may be to the right of Justice Stevens on any number of issues. But nothing in her record, at least the part I am familiar with, tells us that this is the case.

It is because we know so little of her views, because the record of her public pronouncements is so sparse, that she must be forthcoming in her confirmation hearings.

Speaking for me only

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    There may be nothing in her record (none / 0) (#1)
    by Anne on Tue May 11, 2010 at 12:44:53 PM EST
    that shows her as being to Stevens' right, but the real problem, as you state, is that that record is almost nonexistent.  

    What troubles me about the exchange with Graham is not what she said, but how hard and how patiently he worked, it seemed, to draw her out on that particular issue; he really led her right to where he wanted her to go.  Given her career-long propensity for "pleasing," it makes me wonder where she would have gone with the issue of preventive detention if someone else had taken a different approach and led her in a different direction - would she have gone along on that ride in an equally believable way?

    It's making me think that, if it's still available, it would be instructive to revisit the entirety of the SG hearings (I confess that I did not watch or hear much of those hearings at the time).

    Really? (5.00 / 1) (#2)
    by Emma on Tue May 11, 2010 at 12:47:28 PM EST
    it makes me wonder where she would have gone with the issue of preventive detention if someone else had taken a different approach and led her in a different direction - would she have gone along on that ride in an equally believable way?

    I find that concern incredible.


    So, is it just me - that I'm seeing (5.00 / 1) (#13)
    by Anne on Tue May 11, 2010 at 01:19:41 PM EST
    something that isn't there?  Does the excerpt not read to anyone else as if Graham led her to the conclusions she expressed?

    It's why I stated that I probably ought to revisit the entire hearing, so that I can judge for myself how she responded to all of the Senators.

    I guess what I'm saying is that I would be more comfortable with Kagan's answers if they did not seem to have been spoon-fed to her.

    I also don't find Graham to be at all trustworthy, and am innately suspicious of his reasons for leading her that way; he all but patted her on the head for her answers, too, which I found bothersome.


    Yes (5.00 / 1) (#15)
    by Emma on Tue May 11, 2010 at 01:29:34 PM EST
    It read to me like Graham gave her a bunch of leading questions.  It does not read to me like those are not Kagan's views.  One can lead a witness, sure.  But I find it unlikely that Kagan was either a) unwittingly led or b) led to a place she did not agree with.

    What makes you think otherwise?


    I'm not sure I do think otherwise, (none / 0) (#16)
    by Anne on Tue May 11, 2010 at 02:01:55 PM EST
    if that makes sense; I just did not care for the leading nature and direction of the exchange, and would have preferred to have seen Kagan take more initiative in addressing the issue.

    I know she's smart, and she's had years, apparently, of being careful about what she says; maybe she didn't trust Graham, either, and the only way to "control" her answers was to essentially make him pull them out of her.

    I'll try to find time to go over the transcript and see if I get a different sense from the whole.


    Transcript and Archived VIdeo (none / 0) (#14)
    by squeaky on Tue May 11, 2010 at 01:25:42 PM EST
    Thanks - I'll try to make time (none / 0) (#17)
    by Anne on Tue May 11, 2010 at 02:02:55 PM EST
    to go over it; maybe I will feel differently - or at least better - after I do.

    Well ANne Is Still Lobbying FOr Wood (none / 0) (#3)
    by squeaky on Tue May 11, 2010 at 12:49:54 PM EST
    Reflex action happens even when people are dead, I am told.

    Carrying a torch for Wood? (5.00 / 1) (#12)
    by MKS on Tue May 11, 2010 at 01:19:23 PM EST
    Wood is a wonderful judge....but not really a liberal....

    But, if one wanted a liberal with a prolific set of writings to prove it, and an opinionated approach, then Karlan was the one.  Or Koh.  Or preferably both.....Perfect bookends to Alito and Roberts.  And Scalia and Thomas....

    Good gawd, the conservatives got four doctrinaire justices, three of whom have no table manners, and the ringleader of which as Chief Justice just puts smiley face on truly retrograde views.  And we have to come up with nominees who will not hurt anyone's feelings?


    I remember CJ Roberts testimony (5.00 / 1) (#19)
    by christinep on Tue May 11, 2010 at 05:21:06 PM EST
    Talk about opaque. And yet, many of us speculated correctly on the gentleman-to-the-manor-bred positions he would hold...from the entirety of his reported background. While it is only speculation and while I hope that Solicitor Kagan provides some greater degree of direct answer when it is possible, my read of her experience and background suggests a true counterpoint--and an intellectual powerhouse--to none other than the Chief Justice. Often the best of the Justices (the ones not simply relegated to the lonely dissent) are the coalition builders; the persuaders; etc. I hope that I am not being too "hopey" myself, but the stories of her legal combined with administrative combined with social incentives to achieve a better result for her faculty at Harvard seem to suggest someone who might break through (eventually) the personal acrimony reported on in the SCT in the last several years. Two sets of "bookends" might be nice to imagine, but we need to build back the reality of judicial temperament as well (because bookends would stand at opposite ends baying at the moon or at their ideological supporters.) With someone having the temperament, wit, and experience that Kagan has demonstrated, there are early indications that the movement of the Court could well start back (however slowly and systemically) in the direction that many on this blog would like to see.

    Baying at the moon (none / 0) (#20)
    by MKS on Tue May 11, 2010 at 05:23:42 PM EST
    would have high entertainment value.....

    I'm ---laughing out loud. (none / 0) (#22)
    by christinep on Tue May 11, 2010 at 06:02:51 PM EST
    I really (none / 0) (#4)
    by Emma on Tue May 11, 2010 at 12:53:09 PM EST
    don't need you around stirring this pot.  I can arrive at my own conclusions about other people's posts.

    Oh Well (none / 0) (#6)
    by squeaky on Tue May 11, 2010 at 12:58:11 PM EST
    I do not need to feel needed by you to respond to comments as I see fit. Send email to Anne, if you want to have a private conversation.

    Maybe you can take it down a notch (5.00 / 3) (#8)
    by Big Tent Democrat on Tue May 11, 2010 at 01:00:54 PM EST
    If you (none / 0) (#7)
    by Emma on Tue May 11, 2010 at 01:00:22 PM EST
    think I'm going to jump on your bandwagon, think again.

    Never (none / 0) (#9)
    by squeaky on Tue May 11, 2010 at 01:07:41 PM EST
    You are a known entity.

    Wouldn't this be the same problem (none / 0) (#5)
    by jbindc on Tue May 11, 2010 at 12:53:42 PM EST
    For any nominee chosen who wasn't previously a judge?

    I heard that Harold Koh's confirmation (none / 0) (#10)
    by MKS on Tue May 11, 2010 at 01:12:38 PM EST
    hearings were very tense....It is not always the case that the nominee just tries to agree with what is being asked....

    To Stevens' right on the death penalty (none / 0) (#11)
    by gondobie on Tue May 11, 2010 at 01:15:54 PM EST
    Written Questions for Solicitor General Nominee Elena Kagan from Senator Specter during her confirmation hearing in 2009 (page 303).

    The Death Penalty 1. Justice Marshall, the justice for whom you clerked, maintained that the death penalty was always unconstitutional. Do you think that Justice Marshall had it right?

    a. Do you support the death penalty?

    b. Do you believe it is constitutional as applied in the United States?

    c. If your answer is no, are you prepared to argue in favor of the constitutionality of the death penalty before the Supreme Court?

    Answer: I am fully prepared to argue, consistent with Supreme Court precedents, that the death penalty is constitutional. As Solicitor General, I would represent the interests of the United States, as expressed in legislation and executive policy. Like other nominees to the Solicitor General position, I have refrained from providing my personal opinions (except where I previously have disclosed them), both because these opinions will play no part in my official decisions and because such statements of opinion might be used to undermine the interests of the United States in litigation. But I can say that nothing about my personal views regarding the death penalty (relating either to policy or law) would make it difficult for me to carry out the Solicitor General?s responsibilities in this area.

    2. Last year, in Kennedy v. Louisiana, the Supreme Court held that the death penalty for the crime of child rape always violates the Eighth Amendment. Writing for a five-justice majority, Justice Kennedy based his opinion partly on the fact that 37 jurisdictions ? 36 states and the federal government ? did not allow for capital punishment in child rape cases. In reality, however, Congress and the President specifically authorized the use of capital punishment in cases of child rape under the Uniform Code of Military Justice (UCMJ) in the National Defense Authorization Act of 2006, as reported first by Col. Dwight H. Sullivan in his blog and later by the New York Times.

    a. Given the heinousness of the crime, as well as the new information on the federal government?s codification of capital punishment in child rape cases under the UCMJ, do you believe Kennedy v. Louisiana was wrongly decided? If not, why?

    b. Following the Supreme Court?s decision, President Obama announced at a press conference: ?I think that the death penalty should be applied in very narrow circumstances for the most egregious of crimes. I think that the rape of a small child, 6 or 8 years old, is a heinous crime.? Do you agree with that statement?

    c. Would you, as Solicitor General, encourage the Court to reconsider its decision?

    Answer: I do not think it comports with the responsibilities and role of the Solicitor General for me to say whether I view particular decisions as wrongly decided or whether I agree with criticisms of those decisions. The Solicitor General must show respect for the Court?s precedents and for the general principle of stare decisis. If I am confirmed as Solicitor General, I could not frequently or lightly ask the Court to reverse one of its precedents, and I certainly could not do so because I thought the case wrongly decided. There are circumstances, however, in which the Solicitor General properly can petition the Court to reconsider a decision. Relevant to this inquiry are whether a rule of law has been found unworkable, whether subsequent legal developments have left the rule an anachronism, or whether premises of fact are so far different from those initially assumed as to render the rule irrelevant or unjustifiable. The last of these factors would seem the one most potentially relevant to the Kennedy v. Louisiana decision. But I currently do not know enough about this decision or the facts and circumstances surrounding it to say whether I would ask the Court to reconsider it if I were confirmed as Solicitor General; nor would I make this determination without going through the extensive process that the Solicitor General?s office typically uses in such cases.

    How would that place her to Steven's right (5.00 / 1) (#18)
    by Socraticsilence on Tue May 11, 2010 at 04:51:31 PM EST
    She didn't say one way or another about her personal views, simply that she would argue to defend the constitutionality of the Death Penalty in her capacity as SG.

    Well, now-- (5.00 / 1) (#21)
    by christinep on Tue May 11, 2010 at 05:27:56 PM EST
    if one couldn't represent the US fully as Solicitor General in capital cases would that person stand the "slightest chance in ****" of being confirmed? Just commenting.

    Actually, she did comment on her personal views (5.00 / 1) (#23)
    by gondobie on Sat May 15, 2010 at 02:14:25 PM EST
    "But I can say that nothing about my personal views regarding the death penalty (relating either to policy or law) would make it difficult for me to carry out the Solicitor General?s responsibilities in this area."