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The Case for Kagan?

Charlie Savage shrewdly asks whether President Obama might prefer a nominee who will defer to executive power—Kagan over Wood and Sotomayor, given the limited evidence. Surely yes. Obama has adopted, or at least implicitly relied on, aggressive theories of presidential power both for his national security policies and his economic program. The Senate's repudiation of his plan to move Guantanamo detainees to the mainland elicits the nightmare vision of a president ground between the gears of a Congress that blocks his moderate tactics and a Court that blocks his aggressive tactics. The administration's actions in the financial crisis rest almost entirely on executive decree. Legal challenges that have begun as a trickle will soon flood the courts, and threaten, some time down the line, enormous costs for the government. From the perspective of the White House, other considerations must pale.

Respondent:
I think it's safe to say that pretty much any president would prefer, all things being equal, a nominee with who takes a wide view of executive power.
5.26.2009 12:09am
John Herbison (mail):
I wonder whether Chief Justice Roberts and Justices Scalia, Thomas and Alito will be as deferential to a non-Republican president as they were to His Accidency.
5.26.2009 12:31am
iambatman:
Presidents claim a lot of power. It's kind of what they do. But if that were a strong concern for Supreme Court nominees we'd never see decisions restraining the executive.

Any president may be willing to chance some rulings going against him now if they'll also restrict his predecessors for the next 30 years. Or he may hope his nominee only gets his back out of personal loyalty/partisanship.
5.26.2009 12:32am
Hadur:
Clinton's two appointees split on the line item veto case, I think. Breyer wrote a separate concurrence, didn't he?
5.26.2009 12:33am
Cornellian (mail):
I wonder whether Chief Justice Roberts and Justices Scalia, Thomas and Alito will be as deferential to a non-Republican president as they were to His Accidency.

Alito, quite likely, Scalia, no, Roberts, hard to say. Thomas won't modify his views at all for anyone or anything. Sometimes those views are deferential, sometimes not.
5.26.2009 12:38am
David Krinsky (mail):
Two observations:

First, it's far from clear to me that a Supreme Court Justice who is less deferential to executive power would have struck down any of the examples you cite. The set of things that a President is permitted to do is quite broad even in less-deferential (but still mainstream) views of Article II. It's not as though the only two options are "pick Kagan" or "have every executive action struck down."

Second, exercising power to the full extent of the Constitution, but being stopped at the margins by the Supreme Court, has political advantages. So I'm not certain that "surely yes" is the answer to "would Obama prefer a nominee who will defer to executive power?"
5.26.2009 12:42am
Guesty McGuesterson:
This is why I plan an academic career emphasizing the unitary executive and a complete and unblinking faith in markets, tempered only by a slight nod to potential behavioral heuristics as faddish winds may dictate. I'll leverage my FedSoc membership into a CoA clerkship, positions at GMU and then Chicago, and then certainly a shot at SCOTUS w/ a conservative president. All heil chief Justice McGuesterson, who rules with an iron fist and an eye towards what it takes to get a nomination. Hey Eric!
5.26.2009 1:01am
U.Va. Grad:
Guesty: Chicago's tilting ever more leftward these days. Your best shots, post-GMU, are Northwestern and Virginia.
5.26.2009 2:19am
BGates:
a complete and unblinking faith in markets

That's all that free-marketers have, faith. Not like the mountains of evidence that advocates of central command economies can marshal.

The Senate's repudiation of his plan to move Guantanamo detainees to the mainland elicits the nightmare vision of a president ground between the gears of a Congress that blocks his moderate tactics

Moving detainees to the mainland is the moderate ground between what two extremes, following the laws of war on the one hand and making detainees voting members at the 2012 Democratic Convention on the other?
5.26.2009 2:40am
rosetta's stones:

"...the nightmare vision of a president ground between the gears of a Congress that blocks his moderate tactics and a Court that blocks his aggressive tactics."


The Congress appears to be going along with trillions of dollars of Obama's new debt, in little elapsed time and with barely any discussion. If that's what you call being ground between gears...

And Obama never had any intention of moving those prisoners to the mainland, but had every intention of posturing so. For years, whenever the terrorists' buddies in Congress advocated this action, the instantaneous response shut them up completely: "Let's move them into your district." Obama's not stupid, he knew all this. But he's speaking to a world audience, remember. He has to retain his street cred with the NWO types, and Gitmo is a crazy big issue for them.

Frankly, I'da rather had it the other way, and let the terrorists be confined in contintental US, and have the Congress shut down these cursed bailouts.
5.26.2009 8:10am
Nope:
AP is now reporting, citing administration officials, that Sotomayor is the choice.
5.26.2009 8:32am
martinned (mail) (www):

Moving detainees to the mainland is the moderate ground between what two extremes, following the laws of war on the one hand and making detainees voting members at the 2012 Democratic Convention on the other?

No, between releasing them and keeping them in Guantanamo.
5.26.2009 8:35am
Just an Observer:
The speculation about Kagan seems dated this morning, after the widespread reporting that Sotomayor is the pick.

In any event, I found Charlie Savage's thesis to be a stretch.

The 5-4 "war on terror" cases to which Savage referred were mostly not about executive power in a constitutional sense, but about the interpretation of various statutes and the applicability of habeas to Guantanamo (an interpretation of congressional intent and congressional power vis a vis the Suspension clause).

Assuming that there are analogous cases in the future which would break down along a similar left-right continuum, the only way Obama's judicial pick would make a difference would be if s/he came down to the "right" of Kennedy, the median justice. I doubt that Kagan would have been such a nominee.

The only time the Bush administration actually tried a separation-of-powers argument that Article II war powers trump all was in Hamdi v Rumsfeld, decided in 2004. On that question, Bush lost 8-1. The entire remaining history of his legal team in "war-on-terror" cases after that was to bluster publkcly with such arguments in political venues, but avoid judicial review of them at all costs.
5.26.2009 10:08am
Oren:

Let's move them into your district.

Are people daft? Why would anyone care if detainee (let's even stipulate a totally unrepentant terrorist) is in a maximum security prison in their neighborhood? They aren't dangerous men because they have superhuman physical prowess, they are dangerous because they were members of a terrorist organization. Isolated from the group, they are no more dangerous to keep in a SuperMax than anyone else.

I think somewhere along the line we forgot exactly how and why these people are dangerous. . .
5.26.2009 11:20am
rosetta's stones:
You're not thinking like a sitting politician, running against an opponent who will be quick to label you as Osama's buddy. What sells well to the BDSers can get you bounced right out of that comfortable seat.

I suspect some of those terrorists are gonna die of old age in Guantanamo.
5.26.2009 12:33pm

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