Elena Kagan Confirmation Hearing Sets Stage for Political Showdown

Executive Power and War on Terror

Much has been written on Kagan's 2001 Harvard Law Review article detailing her support for the Clinton administration's use of a stronger executive power when it comes to the control of government agencies. Such presidential supervision, she wrote works to "jolt into action bureaucrats suffering from bureaucratic inertia in the face of unmet needs and challenges."

However, supporters of Kagan are quick to point out that her views of a robust executive power on the agency level should not be confused with an endorsement of the Bush/Cheney's view of executive power during the war on terror. Walter Dellinger, former acting Solicitor General for the Clinton administration, says that her take on a robust executive "does not endorse anything remotely" like the Bush-Cheney view of broad presidential power during the War on terror "to evade laws passed by Congress."

In an opinion piece for Slate Dellinger writes that the Bush-Cheney view of executive power "was wrong because it allowed for the president to ignore decisions made by Congress and assert unilateral power to violate duly enacted laws. That is a view of presidential power that Kagan expressly rejects."

In a 2005 letter, Kagan joined other law deans to criticize an amendment authored by Lindsay Graham which would have limited detainees from being able to challenge their detention in federal court.

"When dictatorships have passed laws stripping their courts of power to review executive detention or punishment of prisoners, our government has right challenged such acts as fundamentally lawless. The same standard should apply to our own government." Some liberals have complained that Kagan was not vocal enough in her criticism of policies made by the Bush administration during the War on Terror.

Glenn Greenwald of Salon has written: "Among the most disturbing aspects is her testimony during her Solicitor General confirmation hearing, when she agreed wholeheartedly with Lindsey Graham about the rightness of the core Bush/Cheney terrorism template: namely, that the entire worlds is a "battlefield" that "war" is the proper legal framework for analyzing all matters relating to Terrorism, and the Government can therefore indefinitely detain anyone captured on that "battlefield."

Free Speech and Campaign Finance

As an academic, Kagan has written broadly on free speech issues, and her first argument before the Court as Solicitor General centered on the question of whether decades old campaign finance legislation banning corporate expenditures into electoral advocacy violated the free speech rights of the corporations.

Theodore Olson, a lawyer representing the non-profit corporation Citizen's United, told the Court, "Robust debate about candidates for elective office is the most fundamental value protected by the first Amendment's guarantee of free speech."

In her arguments Kagan focused on corruption and wrote, "Use of corporate treasury funds for electoral advocacy is inherently likely to corrode the political system, both by actually corrupting public office holders and creating the appearance of corruption." A deeply divided 5-4 Court ruled against the government.

Some first Amendment Scholars have suggested however, that although Kagan dutifully argued the government's position in the case, her past academic writings suggest that she might be skeptical of the constitutionality of some campaign finance reform.

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