Atrios expresses an important philosophy that disagreement is "you know, fine" when "disagreements exist because people prioritize things differently or have different interpretations and inferences about things which aren't perfectly knowable." In fact, those kinds of disagreements can substantially educate, and in the case of the Kagan nomination, perhaps give a few nudges to the Senators who will be examining her to ask the important questions.
Last night on the Rachel Maddow Show, Glenn Greenwald and Larry Lessig got to the core of one of these disagreements, specifically on the subject of indefinite detention of terror suspects. Here's Greenwald:
MADDOW: Glenn, one of the things you have written about and I think that other people from the left have criticized about Elena Kagan’s record is a discussion that she had during her solicitor general confirmation hearing with Lindsey Graham and they were talking about indefinite detention, as you mentioned, the government’s right to pick up anybody, anywhere in the world, hold them indefinitely without trial. She essentially agreed with Senator Graham when he was expressing his own views about that.
Is it possible that in that discussion, she was essentially saying what her view was of current law, not necessarily expressing her opinion that she thought it was — that that law was constitutional or that she thought it was good policy?
GREENWALD: No, that’s what Kagan defenders have said about that exchange, and it’s interesting because "The New York Times" described that confirmation hearing as — when she was confirmed as solicitor general, they said Republican senators lavished her with every bit as much praise as Democratic senators did, and the reason is, is because of the types of colloquies that you just referenced.
When she was talking to Senator Graham, part of what she was doing was stating the current state of the law. But she went much beyond that. She actually said that the entire world is a battlefield in the war on terror - - not just the places where there’s armed conflict or where Congress has authorized use of force. And it’s not just people engaging in hostilities against the United States, but even people much more distantly connected to terrorists, people who finance terrorism or who give material support, who we can hold as enemy combatants as well.
That’s nothing that the Supreme Court has said. That is not the state of the law. That is something that she said when answering Lindsey Graham that she believed to be true. And that really is a core precept of the Bush/Cheney approach to terrorism that served as an anchor for so much of the radicalism of the last decade. Again, that is not a perfect insight into what she thinks. But it’s something that is a little snippet that certainly ought to be of concern to people who oppose the Bush approach to terrorism.
And Lessig:
MADDOW: Both the issue of the — I guess, the sparseness or as the case you make, the lack of sparseness of her record, that’s one issue. Also, people have been debating what is in her record. One specific criticism that has been made of Ms. Kagan that I just discussed with Glenn concerns her discussion with Senator Lindsey Graham during her confirmation for solicitor general. She essentially agreed with him about the government’s power to indefinitely detain people without trial no matter where in the world they were arrested.
Is that a cause of concern to you? Do you feel that’s been misinterpreted?
LESSIG: I do. And I believe, as you’ve said in your question to Glenn and as Glenn summarized it in the end — this is a little snippet that has been taken out of context. When I heard it, I understand her to be telling us what she expected the Supreme Court’s view of the law was. And it would be radically inconsistent with everything that she had said before. Both the things you pointed to and the work that she had written when she wrote this piece for the "Harvard Law Review."
I mean, this is another area where Glenn has just flatly misstated the case. In his piece on "Democracy Now" on April 13th, he said that in that article she talked about the power of the president to indefinitely detain anyone around the world. Now, that article was written before George Bush, before 9/11 and before George Bush articulated anything about this power. It has nothing to do with the power of the president to detain anybody. The power of the unitary executive that George Bush articulated is kind of uber-power of unitary executive was nowhere even hinted at in Elena’s article.
Yet, Glenn has repeatedly assert that’d she is George Bush and that is just flatly wrong. What she said before Lindsey Graham was, in my understanding, a characterization of her understanding of the law. She was not as a solicitor general telling the world how she wants to change the law, that’s not her job. Her job is to show that she can advance the interest of the government as the government sees it, both the president and Congress, and she’s done that job extraordinarily well.
A key interjection here: Greenwald rebuts Lessig's mischaracterization of his position:
How can Larry Lessig possibly say on television that I claimed the 2001 Kagan law review article defended Bush's detention powers when I explicitly wrote that the article was about Clinton's domestic policies; that she was discussing the unitary executive theory "before it was distorted by the Bush era"; and that "what Kagan was defending back then was many universes away from what Bush/Cheney ended up doing"?
To which Lessig responded. Both posts are at the cusp of throwing more heat than light on the dispute, as often happens when people start calling each other liars, but if you get past the personal insults, you get to the core. Here's how Lessig describes it:
The distinction is between lawyers like Kagan who believe the president has broad power to control the executive branch because Congress (directly or indirectly) gave him that power and others like Cheney who believe the president has broad power to control the executive branch because the Constitution (directly or indirectly) gave him that power. The critical word here is "broad": Everyone agrees that there is a core of executive authority that the constitution has vested in the President exclusively. The debate is how broadly that core extends.
The difference between these two positions is critical. If you believe the Constitution gives the President absolute control over the administration, then there's nothing that Congress can do about it. But if you believe that it is Congress who has given the President this power, then Congress can take away what it has given.
Despite Lessig's assertion that there is "no ambiguity about what Kagan believes in this respect," there's certainly room to question that based on the relatively scarce record of writing from Kagan on these issues. Greenwald isn't the only constitutional lawyer to raise them; he's joined by Jonathon Turley. And Lessig isn't the only attorney to dispute Greenwald's and Turley's interpretations of those of Kagan's writings that are available.
This is a healthy and a critical debate. It's one that should inform the Senators who are charged with examining Kagan for what will be a lifetime appointment to the nation's highest court. It's the duty of the Senators on the Judiciary Committee to question her beliefs on executive power, on the various roles of the executive versus the legislative branches and to conduct an exhaustive examination of what is going to remain a core issue for the Court in the post-Bush years. It'd be a shame to have this discussion limited to the blogosphere and the cable networks when it is so critical to the nation.