The conservatives’ case against Kagan

Jun 30, 2010

Some on the left aren’t ecstatic with the idea of Elena Kagan on the Supreme Court, and on the right, John Yoo, the Bush administrator who authored the so-called “torture memos,” has authored his own objections to her, in a New York Times op-ed that ran last month. Why doesn’t John Yoo heart Elena Kagan? As thin as her record may be, there’s enough for a conservative not to like—she stood her ground against the U.S. military in protesting the “Don’t Ask, Don’t Tell” policy by keeping military recruiters off of Harvard Law School’s campus; she’s been critical of Guantanamo Bay and went after Congress for writing a bill that would strip courts of their authority to review detention practices; Kagan’s self-professed “legal hero” is Thurgood Marshall, the original lion of the left on the Supreme Court. But most significantly to a legal scholar like Yoo, it’s Kagan’s undeserved reputation—because as a nominee who has never served as a judge, how can we ever really know?—as a defender of executive powers and her true feelings, which Yoo claims to have gleaned through a review of her academic musings. Yesterday we looked at some liberals’ uneasiness over Kagan and today we take up the conservatives’ beef with Kagan.

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