Balkinization  

Tuesday, May 11, 2010

Elena Kagan

Sandy Levinson

I am incapable of detached objectivity regarding Elena Kagan. Not only was she a student of mine long ago at Princeton; far more importantly, she was consistently kind to me as Dean of the Harvard Law School and is responsible for the fact that I have been privileged to teach there over the past seven years when on leave from my regular duties at the University of Texas Law School. I think the world of her and think she will make an excellent Justice.

I do want to pick up on Mark Tushnet's post, regarding her article on Presidential Administration. I will take the liberty of quoting sometime Balkinization-contributor Scott Horton (who now blogs, of course, for Harpers), because I think he gets the article just right.

.... several of her works deal with presidential power, particularly her article “Presidential Administration” . This is a beautiful, extremely perceptive work, closely observed, brilliantly reasoned, and cautious.(italics mine) In it, Kagan notes the increase of presidential power as Congress builds the administrative and regulatory state. The powers that Congress vests in regulatory agencies are necessarily assumed and controlled by the president. Kagan writes as a detached observer, yet there is much to suggest her admiration for the evolution of the strong presidency in the period after World War II. Her career choices, often pushing back her academic career to accept appointments in Democratic administrations, reflect an attitude of engagement with it. All of this leads to the assumption that as a Supreme Court justice, Elena Kagan will be no enemy to the powers of the executive. As my readers know, I am not sympathetic to this attitude. But I am impressed with Kagan’s powers of analysis and presentation just the same. My suspicion–and it’s only a suspicion–is that Kagan is a liberal in the sense of the Kennedy and Johnson Administrations, someone who has faith in the power of the executive to shape a better and more just state. She pays lip service to the limitations on executive authority contained in the Constitution, but she’s generally in the thrall of executive power.


As already noted, I think this is correct, including the description of Kagan's article as "brilliant." I think it is one of the most illuminating articles I've read in years about the actual operations of government, quite unlike, incidentally, her formidable article on the First Amendment, which is superb case-crunching, but largely of interest only to lawyers who take Supreme Court doctrines really seriously. Her "Presidential Administration" article, on the other hand, should interest lawyers, political scientists, historians, and,ultimately, ambitious general readers.

I would add only one comment to that of Scott's, which, not surprisingly, involves my own hobbyhorse: One reason so many liberals became devotees of the Executive is the altogether correct perception that Congress is only fitfully able to engage in genuine governance (I would argue, of course, because of our defective Constitution). It's one thing to prefer presidential administration over a vigorous Congress that is really making all genuine effort to confront the great issues of the day. It's another to do that when one comes to the conclusion, often with reluctance, that the alternative to a (perhaps too) strong President is even greater stasis and inability to meet the challenges that face us. I will note for the record that one reason for my unending gratitude and affection toward Elena Kagan is the fact that she was willing a blurb for my book, suggesting that it "is a timely and important book, and our country would benefit if its ideas provoked real debate." I suppose this could be called "cautious," since she certainly doesn't endorse any of my particular ideas (including the unwisdom of life tenure for Supreme Court justices,), but I was justifiably elated when she was willing to treat it as something other than mere academic flakery.

UPDATE: I probably should have been clearer that the Kagan article on "Presidential Administration" focused on domesticic policies. And the point is that all modern presidents have expressed their frustration with a do-too-little-Congress by trying to use the administrative agencies to achieve their agendas. Obviously, as several people point out below, this can have a down side as well as an upside. But, of course, so can remaining mired in our defective Constitution that, with all of its veto points, makes effective response to the domestic exigencies of the day near impossible. There is surely a serious conversation to be had about this, but declaiming the importance of an 18th-century separation of powers system (that, in fact, did not last more than a couple of years) is not very productive.

Comments:

"One reason so many liberals became devotees of the Executive is the altogether correct perception that" a great deal of what you want isn't all that popular, and it's much easier for a single office holder to resolve to do the unpopular, than for a legislature to do that.
 

One reason so many liberals became devotees of the Executive is the altogether correct perception that Congress is only fitfully able to engage in genuine governance (I would argue, of course, because of our defective Constitution). It's one thing to prefer presidential administration over a vigorous Congress that is really making all genuine effort to confront the great issues of the day. It's another to do that when one comes to the conclusion, often with reluctance, that the alternative to a (perhaps too) strong President is even greater stasis and inability to meet the challenges that face us.

Brett made the obvious point before I could. However, I think this point deserves to be addressed in more depth.

From their onset, progressives have had a very low estimation of our constitutional republic, dismissing the wishes of the people as interest group pressure and the people’s elected representatives as mere uninformed partisans. Instead, progressives envision an alternative “scientific administration,” where experts staffing a regulatory bureaucracy impose progressive policies without the bother of forming a popular democratic consensus in support of those policies.

Starting during the Industrial Revolution, progressive governments delegated Congress’ legislative powers and the courts’ judicial powers to an ever-growing series of executive departments. This “fourth branch of government” now employs nearly a quarter of a million bureaucrats producing over 3000 new rules a year.

The bureaucracy’s power now threatens to eclipse that of our elected Congress. For years, the bureaucracy and not Congress has enacted the vast majority of the law governing our lives. The Code of Federal Regulations imposed by the bureaucracy currently approaches a mind boggling 150,000 pages, dwarfing the United States Code enacted by Congress.

Today, the bureaucracy is emboldened enough to tell Congress what laws it should enact. The Environmental Protection Agency is currently threatening to hobble our economy with draconian global warming regulations unless Congress enacts a carbon cap and trade regime favored by the bureaucrats.

It is more than a little disturbing that Kagan may be a stealth supporter of this assault on our republic and is being seriously considered for a spot on the Court which will eventually hear the lawsuits against EPA's fictional global warming endangerment finding.
 

Mr. DePalma's comment must only be intended as satire. The Industrial Revolution is a late 18th to mid 19th century phenomenon. The Progressive Movement is a late 19th to early 20th century phenomenon. Among its achievements are the women's suffrage and the direct election of US Senators. These gave the power of direct representation to more people, rather than to more civil servants as he appears to think.

If Mr. DePalma also thinks that the fractious Congress can effectively occupy itself with appropriate household maximum levels of radon, rules for blowout protection on offshore drilling platforms, methane in underground mines, and the like, before disasters bring them to national attention, then he is living on another planet; perhaps more to his liking, but it is not this one.
 

Scalia is brilliant too. Ginsburg overall finds him a nice guy. Still wouldn't pick him as justice. I think him a bit of an ass, but even if he was nicer, I still wouldn't.

"someone who has faith in the power of the executive to shape a better and more just state"

That is what I care about; and if it's true, the fact she is brilliant about promoting it is a bug, not a feature.

You said upfront you couldn't really be objective here, so it's fine. But, this sort of praise is why people on the left are wary.

Charming woman, wrote a great article on one important issue, but is this who we want to replace Stevens? Is this why some here didn't want her to retire until after 2008? Seriously?
 

"the alternative to a (perhaps too) strong President is even greater stasis and inability to meet the challenges that face us"

What if the President promotes stuff ala a Bush? Still want it?

Also, sometimes you have to burn yourself when you touch the hot stove. How else do you learn?

If the Constitution is defective, why give more defective power to one person? a Clinton or Obama -- who you already doubt on some things -- won't always be there.

[BTW, I meant to say "he" in my last post, as applied to Stevens' retirement.]
 

To the extent you give the government more power to do good, you give it more power to do evil. To the extent you set up barriers to it doing evil, you make it harder for it to do good. I've observed that one of the distinctions between liberals and conservatives, is that the former are trying to maximize the odds of a good outcome, at the cost of making a really bad outcome possible. While the latter are trying to minimize the odds of a bad outcome, at the cost of making the best possible outcome impossible.

Considering just how bad the worst case of government gets, I guess I have to support the conservative side of that dichotomy.
 

Considering just how bad the worst case of government gets, I guess I have to support the conservative side of that dichotomy.
# posted by Brett : 4:13 PM


Brett, when you compare the worst of democracy (Bush/Cheney) with the worst of no government (Somalia/Afghanistan), bad government still wins.
 

Our former backpacker surely knows about fiction with his proposed book on the Obama administration that he started fabricating only several months after Obama's inauguration and he may know a tad of science with respect to breathalyzers in his legal specialty, but with this:

" ... EPA's fictional global warming endangerment finding ... "

he joins the Neanderthals; perhaps our yodeler's DNA may reveal much higher than the recently reported 2-4% of the Neanderthal genome. With the cut of his heavily bearded photo, it's hard to tell, but his knuckles may be scraping the ground even as he stands.
 

We have a picture of Brett, I see.

Anyways, "conservatives" support governmental power too. This includes, in their favored areas, judicial power.

I don't find their reasoning any more appealing and don't agree with their policy sentiments more often. That doesn't help me personally.

Libertarians are a different animal. Consistent ones are somewhat hard to find and they are a bit too pie in the sky when they are found. But, those who fear governmental power should favor them over conservatives.
 

Bartbuster, Hitler was elected, so I'd say the worst of democracy gets quite a bit worse than Bush/Cheney, though they were enough to put me off voting for the lesser of two evils.
 

Bartbuster, Hitler was elected, so I'd say the worst of democracy gets quite a bit worse than Bush/Cheney, though they were enough to put me off voting for the lesser of two evils.
# posted by Brett : 4:47 PM


Hitler was elected, but as long as Germany was still a democracy his behavior was no worse than Bush/Cheney. Democracy still wins over Somalia/Afghanistan.
 

Well, that's brilliant: Hitler was no worse than Bush/Cheney, aside from dispensing with democracy, and transforming the country into a totalitarian police state....
 

"The bureaucracy’s power now threatens to eclipse that of our elected Congress."

Not really. Congress can overrule what they don't like. In addition, our elected President also has significant control. What alternative arrangement would you prefer?

"EPA's fictional global warming endangerment finding"

My. This seems to be a case of desire ruling over fact. Even if you take the global warming skeptics seriously (which is fine with me, if you take them seriously enough to question them as well) it would be irrational to dismiss the findings of the great majority of experts about the danger.
 

Larry:

I am referring to what is sometimes called the Second Industrial Revolution in the latter half of the nineteenth century when industrialization really got under way in the US and Europe and socialism/progressivism hit it's stride.

As to Congress reassuming it's legislative role, it would be perfectly constitutional for the bureaucracy to counsel Congress and recommend regulations for Congress' considerstion. However, actual approval of legislation should belong exclusively to the People's elected representatives in a republic.
 

Shag:

EPA did not perform a scintilla of science to support the endangerment finding nor did it require the outside science to meet EPA's own guidelines for use. Instead, it adopted the scandal plagued IPCC report, which the British media has eviscerated over the past year for using non-peer reviewed, non-scientific propaganda reports from green groups to support it's claims. Furthermore, the Climategate leaks disclosed data detailing how CPU arbitrarily created an "adjusted temperature" record and the disposed of their raw temperature data.

This is not the place to debate this. I have several extensively annotated and linked posts at my blog reporting on these scandals.
 

Sanpete said...

BD: "The bureaucracy’s power now threatens to eclipse that of our elected Congress."

Not really. Congress can overrule what they don't like. In addition, our elected President also has significant control. What alternative arrangement would you prefer?


Actually, our constitutional checks and balances on our elected branches meant to prevent them from using transitory majorities to impose government power on the people perversely protect the extra constitutional fourth branch.

It only takes a progressive minority to stop any legislation reversing a regulation or a progressive presidential veto backed by a smaller minority in Congress.

As a series of conservative Presidents have found, if they try to stop the bureaucracy, a progressive interest group will bring suit to enforce the bureaucracies reading of the law over that of the elected President. They were rather successful in using this technique to convince unelected courts to reverse a series of Bush Administration regulatory positions.
 

Bart, I missed your view of what alternative system would be preferable. It sounds as though it's you who has a low opinion of our constitutional republic.

Whatever its flaws, the IPCC report is in the mainstream of expert opinion. It appears to me your skepticism is limited entirely to one side of the global warming issue. That's dangerous.
 

Update: Congress "does" things, including expanded criminal dockets that many federal judges are not big fans of.

It puts in place loads of laws that they cannot control, especially after the legislative veto was held unconstitutional, opening up the presidential control she discusses, and if Horton is right, supports in ways we should be wary about.

BTW, this appears to be her legal specialty (more so than her limited writings on speech matters or her now less enthusiastic support of more substantive confirmation hearings) and how much is it actually discussed in media accounts as compared to her alleged ability to form coalitions or even more personal matters?
 

Well, that's brilliant: Hitler was no worse than Bush/Cheney, aside from dispensing with democracy, and transforming the country into a totalitarian police state....
# posted by Brett : 5:37 PM


No, PRIOR to dispensing with democracy, Hitler was no worse than Bush/Cheney. I see you're back to flinging feces...
 

I haven't read Kagan's article yet, so I can't say one way or the other directly, but Tom Goldstein at SCOTUSBlog (about halfway down) doesn't see reason to be wary of Kagan's views on this. After pointing out that her article doesn't address war powers or foreign affairs, he adds

Nor does the article assert that the President has “power” over the other branches of government in the constitutional sense – i.e., a power that cannot be overridden. To the contrary, Kagan “accept[s] Congress’ broad power to insulate administrative activity from the President.” (2251). She instead makes the descriptive claim “that Congress has left more power in Presidential hands than generally is recognized.” (Id.)

He explains that Kagan sees practical advantages in Congress leaving such power in the Presidency, value for progressive goals. But

There is no link between Kagan’s views on the value of Congress permitting strong Executive control of administrative agencies for purposes of achieving progressive goals and the claim that the Bush Administration had the constitutionally conferred power to engage in policies like the NSA wiretapping program and indefinite detention in the war on terror. They have literally nothing to do with each other.

So what are progressives worried about, exactly?
 

Goldstein notes:

Kagan does believe that presidential control over the agencies is a good thing. As a policy matter, but not as a constitutional matter, she therefore shares some common ground with conservatives who believe in a strong, unitary executive.

This suggests her piece is not merely descriptive. Also, it is unclear if it is merely a "policy" description either. Given she is said to be moderate/pragmatic, it suggests that it reflects her constitutional vision as well.

Questions would be: does she have similar support for "presidential control" in non-domestic areas, and if not, why not? For instance, would she support discretion in military tribunals? How much?

Also, critics like Horton and Greenwald are careful to note that this article alone doesn't prove much. They (see the quote cited by Levinson) put it side by side by other things she did. And, it all is something of a black box.

As to Congress retaining power, if it doesn't use it, what check does that ultimately provide? Support, in policy or judicially, of increased presidential discretion increases executive power in that respect. She does say judicial review is important here. But, how will that fare with a conservative Supreme Court?

As an aside, she cites Breyer's scholarship in the field of administrative law. I think she has a certain Breyer flavor to her, with his pragmatic approach. He too had experience working with political branches.
 

Bartbuster, that's inane. It's like saying of somebody who murders his wife, that he wasn't such a bad fellow while he had his wife around, he only turned bad after she died.
 

Brett said...
Bartbuster, that's inane. It's like saying of somebody who murders his wife, that he wasn't such a bad fellow while he had his wife around, he only turned bad after she died.

6:47 AM


No, the insanity is you trying to claim that Germany was a democracy while Hitler was pillaging Europe.

So far you have shown that countries which are taken over by dictators can be worse then Somalia/Afghanistan. What you need to show is that democracies can be worse than Somalia/Afghanistan.
 

Joe, since Goldstein explicitly says otherwise in what you quote from him, and quotes Kagan in support of his view, I don't see why you think what you quote from him suggests she believes in a constitutional strong unitary Executive. What Goldstein says and quotes from Kagan more than suggests just the opposite. She "accept[s] Congress’ broad power to insulate administrative activity from the President." Looking at her article, I see that she directly opposes her view of the constitutional question to that of the unitary executivists (2250-1).

Questions would be: does she have similar support for "presidential control" in non-domestic areas, and if not, why not? For instance, would she support discretion in military tribunals? How much?

If you're asking whether she thinks there are similar practical advantages that apply and similar lack of congressional control exerted in foreign affairs, the practical considerations don't determine a legal view, not even for someone who isn't an ideologue, and the legal question is contingent on matters not discussed in the article. It depends on constitutional provisions relating to foreign policy and on what Congress has done in regard to foreign policy, such as military tribunals, all issues she doesn't address and about which her article implies nothing much, as far as I can tell.

As to Congress retaining power, if it doesn't use it, what check does that ultimately provide?

Only the threat of a check. The same with the Court. I don't think I see your point.
 

This comment has been removed by the author.
 

I don't doubt Sandy's sincerity, but isn't there something a little odd about all of Elena Kagan's "friends," who seem to include everyone in legal education, commenting now on how fine her scholarship is? If this work is really so excellent, why was it virtually never mentioned before? I think there's an appearance of impropriety hear even if the actual hearts are pure.
 

TG -- whose past hyperbole against her critics makes me take him with a grain of salt anyways -- is discussing the article, which I skimmed (I admit to not reading the whole thing, but I doubt lawyers who cited it all did either).

He can't, since she apparently never said as much, say that she is not "constitutionally" supportive of a strong executive. [Opposition to a 'unitary executive' is not the same thing, to the degree we can rely on something she wrote years ago on the point in passing.] Horton et. al. suspect she does and they have the expertise (and in various articles, offered signs) to say as much. But, as I noted, it's something of a black box. Question marks are not a good feeling for some here.

Also, there can be a middle ground without her being supportive of a constitutional based "strong unitary executive." She can be constitutionally supportive of a strong executive that goes too far but not THAT far. Kagan also noted one problem was precedent. She will on the SC, so she can alter that.

As to foreign policy matters, yes, we don't know, since it is only tangentially related to the article. But, since the President if anything has more constitutional or practical control over such matters, I'm curious why similar "practical considerations" would not apply.

And, again, she is deemed a moderate, a pragmatist. "Practical considerations" influence judging there. If she thinks a strong executive is practically a good thing, her apparent judicial view would provide some opening to put it in practice. See also, Breyer, who she quoted in the article.

Finally, you referenced her statement that she recognized Congress provided a check on presidential administration. But, if it doesn't offer it, it is a paper tiger. She also says judicial review is a check; but a conservative Supreme Court provides a limited one for the purposes of liberal aims.

But, I realize, this is all guess work and implication. That is the point: we are replacing a firm liberal voice who voted to restrain executive power with a question mark.
 

Michael, according to Erin Miller at the SCOTUSBlog link given above:

Kagan’s 2001 article “Presidential Administration,” published in the Harvard Law Review, was named the year’s top scholarly article by the American Bar Association’s Section on Administrative Law and Regulatory Practice.

If you haven't heard of it before, it may be because you don't specialize in that area of law.

Not sure what impropriety you have in mind.
 

He can't, since she apparently never said as much, say that she is not "constitutionally" supportive of a strong executive.

What does ""constitutionally" supportive of a strong executive" mean if not what she explicitly denies? What constitutional doctrine do you have in mind that relates to something she actually says?

I have very limited faith in Horton and Greenwald regarding any point they think impinges on their human rights work. I accept their good intentions, but I've seen way too much bias (to put it nicely) in their analysis over time. Their unsupported suspicions are no substitute for what Kagan herself says. Goldstein, on the other hand, gives the money quote from Kagan about this.

Her article is full of legal analysis. Those worried about her have shown no inclination in her to reach legal conclusions based on practical considerations rather than legal ones, as far as I've seen.

I still don't understand your point about checks that aren't exercised. Of course the system won't work if the various parties fail to act as they should in crucial ways. How does this relate to the constitutional question?

That is the point: we are replacing a firm liberal voice who voted to restrain executive power with a question mark.

But that isn't the point at issue. I no problem with people worrying because they don't know what she thinks. It's those who give erroneous reasons to worry about what she thinks I object to. Her article doesn't give any reason I can see to worry.
 

Re Michael Livingston's post: I read both of Elena's major articles before my connection with Harvard (and Elena) began. I have no idea what the citation counts are for the pieces. With regard to the First Amendment piece, I'd be surprised a) if free speech specialists were unaware of it, but I wouldn't be surprised if it hasn't been cited much simply because there are relatively few major articles trying to discern the basic theory underlying contemporary Supreme Court doctrine. Part of this, no doubt, reflects the (relatively) anti-doctrinal turn in constitutional law that I am very sympathetic with. With regard to the article on "Presidential Administration," not only have I cited it frequently, but I would be truly surprised if it isn't one of the most frequently cited articles in contemporary administrative law, precisely because she so brilliantly and thoroughly identified a major development in the law and politics of the modern state apparatus. (The caveat "in contemporary administrative law" is important. Jack Balkin and I did an article some years ago noting that the best way to pick up cites is to write in mainstream constitutional law.) But, of course, this only brings up another question, which is the relevance of citation counts. One of the things that Jack and I also demonstrated is that the best way to pick up cites is to have a very quotable soundbite, like "strict in theory, fatal in fact," or "bargaining in the shadow of the law." I don't recall any such soundbites in either of the Kagan articles, and this is not meant as a criticism.
 

"No, the insanity is you trying to claim that Germany was a democracy while Hitler was pillaging Europe."

I defy you to quote me making any such claim. I said that Hitler was elected, and he was. He not long after converted Germany into a totalitarian police state.

Bush/Cheney were elected. And left when their terms expired, having NOT converted the country into a totalitarian police state. Clearly they were better than Hitler, although I admit that's a low hurdle to jump. But clear it they did.
 

The rabid praise that "Presidential Administration" gets is most certainly completely undue. The entire article can be summarized as "read I.N.S. v. Chadha and take it seriously." Once you accept the idea that the only way for Congress to bind the actions of administrative agencies is through the legislative process, there's nothing in Kagan's article that qualifies as "brilliant" or even particularly insightful. Maybe it took some time after Chadha for the executive branch to fully appreciate the case's implications and assert the kind of control over administrative agencies that Chadha clearly implied were the realm of the executive, but those implications really are bloody obvious.
 

Brett, somehow you switched from claiming that no government is better than bad government, to Hitler being better than Bush. The more you twist the lower the bar gets.
 

Never thought I'd say this, but I'm starting to understand the whole "don't feed the trolls' business. It really IS pointless to argue with somebody like Bartbuster, isn't it?
 

One answer to Daddy Warbucks' question (rhetorical though it may be) is that often the trollee is pointless to begin with. In any event, "The sun'll come up tomorrow .... "
 

Brett, it's pointless for you to argue with anyone.
 

Brett, it's pointless for you to argue with anyone.

A typical broken record is more interesting and more educational than our friend Brett.
 

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