NYT: New Justice Could Hold the Key to Presidential Power (with quotes from Kagan and Wood)

[usregimechange]

WASHINGTON — As President Obama prepares to replace Justice David H. Souter on the Supreme Court, conventional wisdom says his nominee will have little chance to change the court because all the contenders appear to share Justice Souter’s approach on social issues, like abortion rights.

But the effect on presidential power could be pivotal. Important rulings on executive authority — striking down military commissions and upholding habeas corpus rights for Guantánamo detainees — have been decided by a five-vote majority, including Justice Souter, on the nine-member court...

But one, Judge Diane P. Wood of the United States Court of Appeals for the Seventh Circuit, has expressed doubts about claims of sweeping executive powers in national security matters. Another, Solicitor General Elena Kagan, has a history of advocating for presidential powers in domestic matters, along with a mixed record of statements on counterterrorism issues.

http://www.nytimes.com/2009/05/25/us/politics/25power.html?_r=1


Interesting quotes from the two:

Judge Wood

“In a democracy, those responsible for national security (principally, of course, the executive branch) must do more than say ‘trust us, we know best’ when they are proposing significant intrusions on liberties protected by the Constitution."

“In the related area of military justice, the principle is well established that extraordinary tribunals, such as military commissions, are not authorized to operate if the normal courts are open for business."

Elena Kagan

On warrantless surveillance - “The world is watching whether, under this provocation, we adhere to our self-declared principles. And the world will properly condemn us to the extent we become lawless.”