Tag Archives: Executive Power

The Kagan Nomination: What Matters, What Doesn’t

One of the criticisms being hurled at Elena Kagan from the right is that she might be a lesbian. This concerns me.

Not the lesbian part; few things are less important to one’s judicial qualifications. My worry is that Republicans have so atrophied intellectually that this is their loudest reason for opposing her.

A thoughtful soul (I forget who) recently remarked that twenty years from now, almost everyone currently on the wrong side of gay rights issues will be embarrassed to admit it. Yet the obsolete epithets being hurled at Kagan — which may or may not be accurate, and frankly, who cares — are what many of Kagan’s opponents seem to care about the most.

And people wonder why I often take visible offense when someone tries to call me a conservative.

There are substantive reasons to be skeptical about Kagan. One of them is how she views the executive branch. “She is certainly a fan of presidential power,” one scholar remarks. This is important.

Chief Justice Roberts has similar views. He was picked in part because the Bush administration knew he wouldn’t strike down that administration’s more controversial power grabs. Harriet Miers was not rejected for her views, which are utterly conventional. Her nomination was only struck down because her lack of subtlety in expressing those views was considered gauche.

While I have never been an Obama fan, one of my hopes for his administration was that he would repudiate Bush-era excesses such as the PATRIOT Act. He embraced them instead. Having all those cool powers at his disposal was just too much to pass up.

President Obama’s Supreme Court nominees so far seem no different from Roberts or Miers: what the other branches of government want, they shall get. The exceptions, such as the Citizens United decision, are so rare that they garner weeks worth of headlines; such outbursts must be kept to a minimum. Hence Kagan.

What the Supreme Court needs is a healthy dose of judicial activism. Kagan, like Roberts, Sotomayor, and other recent nominees, is a judicial passivist. They reflexively defer to the executive and legislature, right or wrong.

What we need are Justices who will stand up and say “no” when Congress passes a law that is unconstitutional, or when the president abuses his powers. That’s why judicial review exists in the first place. This tradition goes all the way back to Marbury v. Madison, often the very first case that students read in undergraduate constitutional law classes.

As Kagan goes through the pomp and circumstance of the confirmation process, maybe she’ll prove better than her likely soon-to-be colleagues. Maybe she won’t. But so long as her Republican opponents are fixated on something so trivial as her sexual orientation, we may never find out. Given her relative youth, three decades or more of jurisprudence are at stake.

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Obama Wants to Extend PATRIOT Act

People are often surprised to hear how similar President Obama’s policies are to President Bush’s. They shouldn’t be. One may be a Republican and the other a Democrat, but make no mistake. Bush and Obama are two peas in a pod.

-Bush signed a $700 billion bank bailout bill. Obama continued the policy. And he extended it to other sectors, such as the automobile industry.

-Bush tried fiscal stimulus twice while in power. With some help from the Bush team, Obama oversaw the largest fiscal stimulus bill in history. There is occasional talk of another.

-Bush started two land wars in Asia. Obama could end them. Instead, he is committing more troops to Afghanistan.

-Bush oversaw Medicare part D, the largest expansion of government’s role in health care since 1965. Obama also would like to expand government’s health care presence.

-And now, we have the PATRIOT Act. The bill was perhaps the largest expansion of executive power in seventy years, and the Bush administration’s signature legislation. Now that Obama has inherited all these cool powers, turns out he likes the PATRIOT Act, too. So he wants to extend some of its expiring provisions.

Predictable. Still disappointing.

Moving On

As so often happens, Gene Healy hits a home run.

On the anniversary of 9/11, what’s clear is that, despite the cliche, September 11th didn’t “change everything.” In the wake of the attacks, various pundits proclaimed “the end of the age of irony” and the dawning of a new era of national unity in the service of government crusades at home and abroad. Eight years later, Americans go about their lives, waiting in restaurant lines, visiting our ”great destination spots,” enjoying themselves free from fear — with our patriotism undiminished for all that. And when we turn to politics, we’re still contentious, fractious, wonderfully irreverent toward politicians, and increasingly skeptical toward their grand plans. In other words, post-9/11 America looks a lot like pre-9/11 America. That’s something to be thankful for on the anniversary of a grim day.