Tuesday, May 18, 2010

Court Commentary: Biden on Kagan

So, Joe Biden wants me to back Elana Kagan. In his note he says:
To see why, look no further than her role in the Citizens United case. It was a legal battle that most experts agreed would be impossible for the government to win. But as Solicitor General, Elena chose this as her first case. She recognized that rolling back bipartisan election law would allow special interests to dominate campaigns across the country and drown out the voice of the American people. Though she knew she'd probably lose, she chose to make it her fight all the same. That's character.
Wait, hold on a moment -- who thought Kagan was going to lose Citizens United? Since when was that case a foregone conclusion? And how does that obviate her responsibility in losing one of the landmark cases of the last year?

I don't think Obama and Biden want to make a big case of Kagan's positions as a Solicitor General. Let's take one at random: here's a recap of a case where Kagan argued that detainees at Bagram Airbase have no rights:

The U.S. Supreme Court ruling in Boumediene v Bush, which granted habeas rights to Guantanamo detainees, Kagan wrote, “rested heavily on the ‘unique status of Guantanamo’” in terms of “the nature and duration of the United States presence at the site of detention, and the practical obstacles to permitting the detainee to pursue habeas relief in United States court…”

Bagram, she wrote, “does not share the defining attributes of Guantanamo,” thus “an enemy alien apprehended and detained by the military overseas in an active war zone at the very least bears an extremely heavy burden before he may sue his captors civilly and require the federal courts to second guess the judgment of both political branches with respect to the reach of habeas jurisdiction.”
Now, whether or not the case is correctly legally argued, it returns to mind the fact that the Solicitor General's job is to basically legally argue whatever the President believes, whether it be that Bagram air-base detainees have no rights or that some detainees may be held forever.

How strange, then, to back a Solicitor General for losing a case of great importance, while defending a principle that you told her to have.


isaac butler said...

here's the thing... i agree with you that kagan's positions w/r/t executive power and civil rights of detainees are not good. Really troubling. But they are also political winners. Sadly, your and my position is not the popular one now, so biden running on this shit makes some sense.

CultureFuture said...

Right, but as Solicitor General, I'm sure you can find any number of positions that people dislike. My point though is really just that Solicitor Generals don't argue the things that they want, they argue the things that the Obama Administration wants; it doesn't reflect principles so much as the ability to follow orders well. It's a similar judicial philosophy that Bush's Office of Legal Counsel took, the difference being that that isn't what the OLC is supposed to do.

Losing Citizen's United seems like a pretty poor way to demonstrate anything about Kagan.