At the end of a week that saw a crop of new names floated as possible replacements for Justice John Paul Stevens, Solicitor General Elena Kagan remains at or near the top of the list. But that favored position has also made her an easy target, especially for liberals who warn she is too conservative to follow in Stevens' progressive footsteps.
If she is nominated to the U.S. Supreme Court, most liberals will likely fall in line behind her, encouraged by icons from Charles Ogletree to John Podesta and Walter Dellinger, who are firmly in her cheering section.
Until then, the drumbeat of Kagan criticism may get louder as scrutiny of her brief record as solicitor general intensifies. Advocates for human rights and other liberal causes who are upset at the Obama administration for continuing Bush-era policies may take their frustration out on Kagan.
"From the perspective of those who have been advocating change from Bush policies, she has been a disappointment," said Tina Foster of the International Justice Network, who argued against Kagan's deputy Neal Katyal over detention policies in an appeal in January.
"She would spell very bad news" if she became a Supreme Court justice, said Vince Warren, executive director of the Center for Constitutional Rights, which has long challenged Bush and now Obama detention policies. "We don't see any basis to assume she does not embrace the Bush view of executive power."
At the Electronic Frontier Foundation, senior staff attorney Kevin Bankston called the Obama administration's stance on state secrets and national security wiretapping "a grave disappointment, particularly for those who took Obama's promises seriously." Bankston cautioned he is not certain how involved Kagan herself has been in the positions the department has taken on these issues.
Kagan's defenders and those who know the operations of the Office of the Solicitor General last week said it was unfair to blame her for Obama policies or statutes she is obliged to support. "The solicitor general doesn't get to change the law" and ordinarily must defend federal statutes, said Doug Hallward-Driemeier, head of the Ropes & Gray appellate and Supreme Court practice, who worked under Kagan as an assistant to the solicitor general until December.
CONTINUITY AND COURTSHIP
It remains to be seen how much these tussles on the left will take the edge off what otherwise appears to be a strong start for Kagan as solicitor general.
Before becoming SG, she had never argued an appellate case before any court, but Kagan has mastered the art, arguing six cases before the justices and calmly keeping up with the barrage of questions from the justices. She'll concede error in her focused effort to persuade the Court. When Kagan answered a question from Justice Antonin Scalia with another question last month, Chief Justice John Roberts Jr. scolded her. Without missing a beat, she apologized and moved on.
"She has very confident, engaged dialogues with the Court," said Hallward-Driemeier.
And as far as the Court is concerned, Kagan's nurturing of the office's long tradition of continuity between administrations is likely a plus, not a minus. She has charted a virtually seamless path from the Bush to the Obama administrations, to the chagrin of liberals who were hoping for a little less continuity. For the same reason, conservatives have treated Kagan gently so far -- commentator Bill Kristol even called her a "very respectable choice" April 12 on Fox News -- though if she is nominated, their mood could darken.
Kagan declined comment for this story, but in an exclusive interview with The National Law Journal last May, she said, "The SG's office represents the long-term interests of the United States, and, with respect to a great many matters, those interests are stable from administration to administration. The client, you might say, doesn't change."
She added that, as new agency regulations take hold under the new administration, her arguments would reflect that. "So yes, much stays the same -- and should -- but some important things can be expected to change."
Nearly a year later, some analysts say they have seen little of that change. There has been "a quite unsurprising continuity" on criminal law cases, said Sidley Austin partner Jeffrey Green, co-chairman of the committee that writes Supreme Court briefs for the National Association of Criminal Defense Lawyers.
But Green did point to subtle shifts -- such as the administration staying out of certain state cases that the past administration might have joined. In Berghuis v. Smith, involving a Michigan defendant's claim that his jury was not drawn from a cross-section of the community, Michigan asked the solicitor general to join as amicus curiae, and the defense asked her to stay on the sidelines. Kagan attended the meetings with the parties, and her office did not file a brief. The defendant lost anyway in a March 30 ruling of the Court.
Scholars who follow the contentious Guantanamo Bay detainee litigation also say the government's positions have changed in significant ways, despite the criticism from human rights groups.
Steve Vladeck, a professor at American University Washington College of Law, has spotted subtle changes in the briefing of some lower court cases that may have been approved, if not devised, by Kagan.
For example, Vladeck said, the new administration has "all but abandoned" a key Bush administration argument that the president has inherent constitutional powers to take broad steps in the war on terrorism. Instead, in the case of Mohammed v. Obama in D.C. district court last year, the Justice Department based its claim of authority more narrowly on the post-9/11 congressional Authorization for Use of Military Force. "Obama has put all his eggs in that AUMF basket," said Vladeck -- a significant shift. Warren of the constitutional rights center agreed that Kagan may be offering different rationales for the administration's actions, "but it doesn't make much of a difference."
Vladeck has also noted that the Obama administration in some cases has been "much more willing" to accept international law and law-of-war standards for detention of aliens. On the other hand, Vladeck said, the Obama Justice Department has vigorously argued against habeas jurisdiction at the Bagram internment facility in Afghanistan, arguing that it is in a "distant and active war zone" and is therefore different from Guantanamo, where the Supreme Court ruled in favor of jurisdiction. Deputy Solicitor General Katyal argued against habeas rights at Bagram in the case of al Maqaleh v. Gates before the U.S. Court of Appeals for the D.C. Circuit in January.
During the time he overlapped with Kagan in the solicitor general's office, Ropes & Gray's Hallward-Driemeier said he saw far more continuity than change, and that is to be expected. Hallward-Driemeier said, "She was very interested in precedents and in what arguments could reasonably be made."
Kagan often came to his office instead of discussing briefs by e-mail, Hallward-Driemeier said. "She's a very collegial person and works well with others," he added, making it clear that, by "others," he also meant other Supreme Court justices -- if she is appointed and confirmed.
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