Some On Left Also Oppose Kagan Nomination

MICHELE NORRIS, host:

Republicans have vowed that Elena Kagan will go through a tough as nails nomination process, in part to help mobilize their base before the midterm elections. That is not entirely surprising. But Kagan's nomination has also drawn fire from the left. Progressive Democrats have complained that the president may be pulling the court further to the right by selecting a moderate liberal whose judicial philosophy is unclear.

Glenn Greenwald is a former constitutional lawyer and columnist for Salon.com, where his most recent post appears under the headline "The Case Against Elena Kagan." And Glenn Greenwald joins us now. Welcome to the program.

Mr. GLENN GREENWALD (Columnist, Salon.com): Great to be here.

NORRIS: So why should progressive Democrats be wary of Kagan's nomination to the court?

Mr. GREENWALD: Well, for one thing, she's somebody who has virtually no record on anything of importance. She's a person who has managed by design to avoid taking positions on virtually every single important legal and political issue of the day, over the course of the last 20 years.

She's really basically a blank slate and progressives have absolutely no ability, nor does anybody have an ability, to assess what she would be like on the court. And most importantly, the impact she would have in light of the fact that she's replacing Justice Stevens, who's the leader of the liberal wing of the court, to the extent such a thing can be said to exist.

NORRIS: Let me engage in a little exercise with you. I'm going to cite a few salient issues and tell me what you can about what you know about her judicial philosophy based on her background. You know, as briefly as you can.

Abortion rights, gun rights issues and, say, the treatment of the prisoners in Guantanamo Bay.

Mr. GREENWALD: Okay. Taking the first one, I think we know exceedingly little about her views on abortion rights. I don't think she's ever expressed an opinion, for example, about whether or not Roe vs. Wade was rightly decided. Something did come out yesterday, which was a memo that she wrote while in the Clinton White House advising President Clinton to sign a bill that would ban partial birth abortion, with an exception for rape, incest and life of the mother, which was a very controversial bill at the time among reproductive rights activists.

I don't think she's ever spoken about the Second Amendment or what she believes about whether the Second Amendment applies to individual rights, although the Supreme Court recently ruled that gun right ownership is an individual right. And presumably she'll say that she would apply that as good law.

And I think the Guantanamo issue is the one where we know the most about because that's where she's commented the most. And in a hearing that she had to be confirmed as solicitor general, she basically embraced numerous right-wing, Bush-Cheney views about the right to hold people as enemy combatants, to hold them indefinitely. She did say that some due process is needed. But the core approach of the Bush-Cheney template for terrorism is something that she seems quite comfortable with.

NORRIS: The president says that Supreme Court picks are not about politics. But if progressive Democrats are concerned about the other branches of government, does this pick in that regard make sense, in that it appears to be someone that conservatives can live with? In other words, would choosing more of a liberal anchor enflame the right and possibly imperil the Democrats' hold on power?

Mr. GREENWALD: Well, I think if you look at how conservatives approach the Supreme Court vacancies, the answer to that question is clear. I mean, when they had the opportunity they chose John Roberts. And then when President Bush chose Harriet Miers, they demanded that she be rejected because she had an insufficient record and they got Sam Alito. Two very committed, clear right-wing ideologues with a long record of defending conservative jurisprudence. And there was a consensus that the president had the right to make those choices, and they defended the philosophy behind them.

Democrats take the opposite position and say, we want to choose a stealth nominee, about whom there's no evidence in terms of her beliefs, who has no written record and therefore we don't have to defend any positions. And I think that's the way the Democrats get harmed is through the perception that they're afraid of their own belief system.

NORRIS: That was Glenn Greenwald. He's a former constitutional lawyer and a columnist for Salon.com.

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