Salon’s Glenn Greenwald, who has been writing critically of Elena Kagan for weeks, weighs in today with a zinger: “Nothing is a better fit for this White House than a blank slate, institution-loyal, seemingly principle-free careerist who spent the last 15 months as the Obama administration’s lawyer vigorously defending every one of his assertions of extremely broad executive authority.” The liberal complaint against Kagan, when it is evident, has effectively two parts: First, there are two many questions about Kagan, given such a limited and, in some ways, ambiguous record. Second, Kagan is set to replace John Paul Stevens, a relative progressive on the court. It follows therefore that Kagan’s confirmation could move the court to the right, an outrage given the concerted conservative effort over the last two decades to remake the federal courts. (Greenwald lays out his case here.)
Lawrence Lessig, Kagan’s former colleague at the University of Chicago and Harvard, responded to Greenwald with an argument of his own.
The Kagan I know is a progressive. But we should be careful about precisely what that term means today. Constitutional law has been affected fundamentally by the work of scholars and judges such as my former boss, Justice Scalia. Their influence has plainly reoriented constitutional law to ask not, “What would be the best answer?” to any particular question, but instead, “What is the answer of fidelity?” Or again, what is the answer that most faithfully applies the law of the different generations of our Framers — the Founders, the Civil War Republicans, and the Progressives at the beginning of the last century. I’m not sure that “liberals” on the Court have always accepted this framing. Certainly Douglas and Holmes didn’t feel themselves so constrained.
Read Lessig’s entire piece here.
UPDATE: In an early version of this post, I said Lessig’s piece was published today. It is actually a few weeks old, and Greenwald responded to it here.