"She is certainly a fan of presidential power."


The quote is from William F. West, a professor of federal administration at the Bush School of Government and Public Service at Texas A&M, commenting to the Boston Globe on Obama Supreme Court nominee Elena Kagan shortly after she was nominated to be solicitor general last year. The New York Times' Charlie Savage explains how a Kagan nomination could shift the balance of the court on key civil liberties vs. war on terrorism issues.

But Kagan's pro-government position extends to criminal justice issues, too. In her current position, Kagan and her subordinates have filed amicus briefs and argued the pro-prosecution, pro-law enforcement position in every criminal justice-related case to come before the Supreme Court since Obama took office. In cases where the constitutionality of a federal law was in question, you could argue that because of her position, Kagan was obligated to defend the law whether she agreed with it or not. But her office could at the very least have merely remained silent on cases like Alvarez v. Smith (a challenge to the Illinois asset forfeiture law, which is much more government-friendly than the federal law), or Alaska, District Attorney's Office v. Osborne (arguing that the states should grant post-conviction DNA testing if doing so could show factual innocence).

Kagan's office also argued against expanding the rights of the accused and wrongly persecuted when a specific federal law wasn't in question, such as when she argued that prosecutors who manufacture evidence that leads to the conviction of an innocent person should not be subject to lawsuits (Pottawatomie vs. McGhee), and that the Constitution's Confrontation Clause doesn't protect the right to cross examine forensic experts (Melendez-Diaz v. Massachusetts). Most recently in U.S. v. Stevens, her office argued in favor of a federal law banning the sale of videos depicting animal cruelty, taking a broadly censorious position that First Amendment rights be balanced with "societal costs."

That position was rebuked as "preposterous" in an 8-1 opinion authored by Chief Justice Roberts. Which makes Kagan more pro-censorship than Roberts, Scalia, Kennedy, or Thomas. (She also argued the pro-censorship position in Citizens United, but while no less troubling, that's less surprising.)

It's also not surprising to hear that Kagan and Obama "think alike." Obama's rhetoric on civil liberties shifted nearly the day he took office. When it comes to fulfilling campaign promises, Obama has been bold and fearless in pursuing policies and initiatives that expand the size and power of government (and, consequently, his own power), and somewhere between compromising and submissive on promises that would limit the power of government and protect our rights and freedoms. So Kagan may well be the perfect nominee for him. She's a cerebral academic who fits Washington's definition of a centrist: She's likely defer to government on both civil liberties and regulatory and commerce issues. And though libertarians allegedly share ground with Republicans on fiscal and regulatory issues and with Democrats on civil liberties issues, neither party cares enough about those particular issues to put up a fight for them. Which is why Kagan sailed through her first confirmation hearings, and is widely predicted to sail through the hearings for her nomination to the Supreme Court.

Justice Stevens' reputation as a stalwart defender of civil liberties was probably overstated. Which makes it all the more disappointing that Obama's choice to replace him will almost certainly make the Court even less sympathetic to the rights of the accused. And taken with Obama's decision to replace Justice Souter with Sonia Sotomayor, a former prosecutor with a "tough on crime" reputation, the candidate who touted his days as a community organizer for the powerless and dispossessed and who decried the criminal justice system's disproportionately harmful treatment of minorities and the poor during the campaign will now almost certainly leave the Supreme Court more law enforcement-friendly and more hostile to criminal defendants than he found it.