The Boston Phoenix
http://thephoenix.com/boston/news/100861-elena-kagans-shaky-record

Elena Kagan’s shaky record

What a Kagan appointment to the Supreme Court could mean for civil liberties

As a potential Obama nominee for Supreme Court justice, Elena Kagan has liberal bona fides and the likely support of the right. But if her record is any indication, she’s more likely to side with the conservative bloc on matters of executive power and war-time presidential authority.

April 16, 2010

By HARVEY SILVERGLATE AND KYLE SMEALLIE

Kagan has a history of executive-branch service — first, as associate White House counsel in the Clinton administration, and now as Obama’s SG. In one of her few written works, a 2001 Harvard Law Review article titled “Presidential Administration,” she supported Clinton administration efforts to assert control over regulatory agencies as a means of overcoming an obstructionist Republican-controlled Congress. Granted, this was before the Bush administration asserted unprecedented power after 9/11 and fundamentally altered the commander-in-chief’s authority. But as the nuanced notion of executive authority that she advocated became a vehicle for destruction of constitutional liberties, she never felt compelled to publicly revise or update her stance.

In one noteworthy area, Kagan has revised her earlier views. A 1995 Chicago Law Review article saw Kagan extolling tough questions for executive-branch nominees seeking congressional confirmation. Without such scrutiny, Kagan wrote, “the confirmation process takes on an air of vacuity and farce.”

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But during Kagan’s tenure as SG, she has signed briefs and personally argued some cases and taken extreme positions that should be cause for concern to supporters and civil libertarians who elected Obama. In particular, in cases involving national security and the war on terror, and still others in the criminal-law arena, Kagan has advanced the notion of an extraordinarily strong executive authority.

Consider the following cases in which SG Kagan has argued or filed briefs on behalf of the government:

HUMANITARIAN LAW PROJECT V. HOLDER: A federal statute that criminalizes lending “material support” to groups deemed “terrorists” by the US is the most-used criminal statute in the war on terror. It’s also one of the vaguest — a veritable trap for the unwary. Probing the undefined and indefinable scope of this statute, the Supreme Court asked whether it was legally permissible to help “terrorist” groups “advocate peaceful means,” such as by filing a friend-of-the-court brief on their behalf.