A case of Supreme importance

Associate Justice John Paul Stevens announced last Friday that he would retire this summer from the U.S. Supreme Court. Stevens, considered to be the leader of the "liberal" wing of the Court, has been a bulwark against the executive overreach and unconstitutional acts of the previous administration in cases such as Hamdi v. Rumsfeld.

In that case he joined a scathing dissent with Justice Scalia saying that the president had absolutely no authority to imprison American citizens as "enemy combatants" and must instead charge them with a crime. Stevens has been a strong advocate for civil liberties his entire career, and most recently, has steadfastly opposed the sweeping claims of executive power by both the previous administration and the current one.

His choosing to retire his seat should be a perfect opportunity for progressives (in the administration, the media, and Congress) to fight for someone in the same judicial mold who will maintain the balance of the Court for years to come. Instead, however, the most prominent name on the short-list to replace him is Solicitor General Elena Kagan.

This should be troubling to anyone who does not advocate for unlimited and unending totalitarian-like powers in the hands of the president. Kagan, as Solicitor General, has vehemently supported Obama's ever-widening record of supporting and continuing and even expanding Bush/Cheney "War-on-Terror" and executive powers arguments.

In this area alone it would move the Court substantially to the right, presumably for decades to come. Her record on any substantive constitutional issue of the past 30 years is sketchy, at best. She wrote one article for the Harvard Law Review in June 2001 supporting the efforts President Clinton had made (she worked as a lawyer for him) to exert more authority in domestic government agencies.

Little is known about her views on other progressive policies—though she does appear to be in favor of abortion rights and gay rights. Harriet Miers was opposed not just by the Left but by the Right for her lack of experience and body of legal work. Miers was also cast as a veritable intellectual light-weight, a claim that cannot come even close to being made against Kagan; she was, after all, Dean of Harvard Law School—no small feat.

There are better names out there; moderate 7th Circuit Judge Diane Wood or the liberal Harold Koh, a State Department counselor and former Dean of Yale Law School. Kagan has no proven record, and what little is known shows her to be far to the right of Stevens, which would swing the Court heavily in that direction.

If you think that the Bush and Obama administrations have violated the Constitution, progressive or not, and think the dangerous grab for massive new executive powers is not only unwise, but unhealthy to the American ideal and the Constitution itself, then Elena Kagan is not just the wrong choice for the Supreme Court. She is the wrong choice for America.