In his book, Takeover, Charlie Savage argued that the true unifying theme behind Bush’s SCOTUS picks (including Harriet Miers, had she survived) was strong support for executive power. So not only did Bush expand executive power with his signing statements, he did so even more by packing SCOTUS with Justices who would vote to support this expansive view of executive power.

Appropriately, then, Savage has a review of Obama’s top contenders to replace Justice Souter in those same terms: what have the candidates said about executive power?

While he suggests there is little to indicate how Sonia Sotomayor, Jennifer Granholm, and Janet Napolitano would rule on executive power (aside from the fact that the latter two have themselves been executives), he does map out a clear difference between Diane Wood and Elena Kagan:

But in a 2003 essay, [Wood] warned that steps proposed in the fight against terrorism, like diminishing privacy to facilitate executive surveillance, posed a threat to the rule of law.

“In a democracy, those responsible for national security (principally, of course, the executive branch) must do more than say ‘trust us, we know best’ when they are proposing significant intrusions on liberties protected by the Constitution,” she wrote.

And in a lecture about legal issues related to natural disasters, published in 2008, Judge Wood suggested that she would view trying terrorism suspects in military commissions, as Mr. Obama has proposed, with suspicion.

[snip]

Ms. Kagan’s history, by contrast, suggests a greater sympathy for executive interests.

[snip]

Later, in her solicitor general confirmation hearing, Ms. Kagan said the president had the authority to indefinitely detain, without a trial, someone suspected of helping to finance Al Qaeda.

She also said that she, like any solicitor general, would not defend a statute that “infringes directly on the powers of the president,” because “there are occasional times where presidential power still exists, even if Congress says otherwise.” But, she added, that category was “exceedingly narrow.”

There’s more there, so click through to read the whole thing. This is one of the most useful articles I’ve read on the whole SCOTUS search, because it really does point to an area where even moderate Democrats like Kagan could have a devastating effect on our Constitution going forward. Obama has already proven a little too fond of executive power for my taste. Let’s hope he doesn’t institutionalize that with his choice for SCOTUS.

In his book, Takeover, Charlie Savage argued that the true unifying theme behind Bush’s SCOTUS picks (including Harriet Miers, had she survived) was strong support for executive power. So not only did Bush expand executive power with his signing statements, he did so even more by packing SCOTUS with Justices who would vote to support this expansive view of executive power.

Appropriately, then, Savage has a review of Obama’s top contenders to replace Justice Souter in those same terms: what have the candidates said about executive power?

While he suggests there is little to indicate how Sonia Sotomayor, Jennifer Granholm, and Janet Napolitano would rule on executive power (aside from the fact that the latter two have themselves been executives), he does map out a clear difference between Diane Wood and Elena Kagan:

But in a 2003 essay, [Wood] warned that steps proposed in the fight against terrorism, like diminishing privacy to facilitate executive surveillance, posed a threat to the rule of law.

“In a democracy, those responsible for national security (principally, of course, the executive branch) must do more than say ‘trust us, we know best’ when they are proposing significant intrusions on liberties protected by the Constitution,” she wrote.

And in a lecture about legal issues related to natural disasters, published in 2008, Judge Wood suggested that she would view trying terrorism suspects in military commissions, as Mr. Obama has proposed, with suspicion.

[snip]

Ms. Kagan’s history, by contrast, suggests a greater sympathy for executive interests.

[snip]

Later, in her solicitor general confirmation hearing, Ms. Kagan said the president had the authority to indefinitely detain, without a trial, someone suspected of helping to finance Al Qaeda.

She also said that she, like any solicitor general, would not defend a statute that “infringes directly on the powers of the president,” because “there are occasional times where presidential power still exists, even if Congress says otherwise.” But, she added, that category was “exceedingly narrow.”

There’s more there, so click through to read the whole thing. This is one of the most useful articles I’ve read on the whole SCOTUS search, because it really does point to an area where even moderate Democrats like Kagan could have a devastating effect on our Constitution going forward. Obama has already proven a little too fond of executive power for my taste. Let’s hope he doesn’t institutionalize that with his choice for SCOTUS.

emptywheel

emptywheel

Marcy Wheeler aka Emptywheel is an American journalist whose reporting specializes in security and civil liberties.