Harvey Silverglate: On why Elena Kagan is a problematic SCOTUS nominee

Nearly a month ago, HARVEY SILVERGLATE explained why an ELENA KAGAN nomination should give civil-liberties defenders pause. Now that Obama has nominated the former Harvard law dean, Silverglate's article contains the most detailed analysis yet published of Kagan's judicial philosophy. He writes: 

On matters of executive authority — where the judicial branch has been a vital bulwark against post-9/11 “war on terror” civil-liberties violations — Kagan’s record indicates an ideological departure from Justice Stevens, who authored watershed detainee-rights opinions and organized the five-justice majorities that struck down other Bush administration power grabs.

To be sure, attempting to assess a judicial philosophy, much less a justice’s evolution once on the bench, is difficult (see David Souter). And Kagan’s tight-lipped nature regarding her personal legal philosophy, coupled with a scant paper trail, doesn’t help. But if her record — the few clues she provided as an academic, and in her tenure thus far as SG — is any indication, she’s more likely to side with the conservative bloc on matters of executive power and war-time presidential authority.

Read the full article here, including a case-by-case analysis of briefs Kagan argued or filed on behalf of the government. Silverglate will be discussing Kagan's record tonight at 6 pm on New England Cable News's "Broadside with Jim Braude."

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