Kagan: A Friend of Big Brother?

Solicitor General Elena Kagan is regarded by many as the frontrunner to replace retiring Supreme Court Justice John Paul Stevens, and though she shares Stevens’ views on gay rights and abortion, her nomination could shift the court rightward on a key post-9/11 issue: the power of the president, argues civil liberties lawyer Harvey Silverglate. In her work as solicitor general and in her published work, Kagan has pushed for “an extraordinarily strong executive authority,” Silverglate writes. To be sure, her job requires that she argue the position of the government, not her own beliefs, but solicitors general are allowed some freedom to not argue cases they find particularly odious. But Kagan has not elected to disassociate herself with major government arguments restricting civil liberties, as when she argued for a federal law that makes illegal offering material support to terrorists—including filing court briefs on their behalf. Of her potential confirmation hearings, Silverglate warns, “It’s too bad that this dog-and-pony show will detract from the real question that needs to be asked—namely, whether Kagan thinks executive authority trumps liberty and individual rights when they conflict in either the national security or law-enforcement arenas.”