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.