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.
http://www.law.com/jsp/article.jsp?id=1202448233938Elena Kagan’s recent defense of presidential administration concentrated on domestic policy, but her ideas suggest a criticism of the above proposals. She claims that presidential administration energizes a moribund bureaucracy:
The need for an injection of energy and leadership becomes apparent, lest an inert bureaucracy encased in an inert political system grind inflexibly, in the face of new opportunities and challenges, toward (at best) irrelevance or (at worst) real harm. . . . This conclusion, of course, would be less sound to the extent that the political and administrative systems fail to impose adequate limits on the President’s exercise of administrative power. Then, the balance
between friction and energy would tip toward the opposite extreme— away from the too broad curtailment of regulatory initiative to the too facile assertion of unilateral power. One reason not to fear this outcome
relates to the President’s accountability to the public . . . .105
But this view of the presidency, at least in the realm of foreign affairs, is as far from a description of contemporary reality as are Madison’s views, reprinted in the first paragraph of this Essay. Consider such claims in light of
the facts that: (1) there is little public accountability when decisions are secret; (2) agency officials have been excluded from providing input on answers to key legal questions; (3) no neutral subordinate decision-maker exists; and (4) the
administration has itself asserted that the brunt of these questions are beyond the purview of the courts altogether.
http://www.yalelawjournal.org/pdf/115-9/Katyal.pdfOne example: when she was being confirmed by the Senate for her current post, solicitor general, she defended the right of indefinite detention of terrorism suspects.
I think these things should be taken seriously. It follows a certain logic that she probably wouldn't feel as free as John Paul Stevens did to offer striking dissents on such matters. Stevens was in his eighties and beyond caring what anybody thought of him. Kagan will want to be a force on the court, meaning (I'm just guessing here, but it makes sense if you read that Times profile) that she might want to be more of a conciliator, more of a power-player among the court's nonet rather its thundering dissenting voice on these questions.
http://www.guardian.co.uk/commentisfree/michaeltomasky/2010/may/10/obama-administration-supremecourtWhile she has some liberal leaning credentials, to me it is not enough to offset her "blank slate" and these issues at the core of power.