A progressive case for Elena Kagan?

Because I haven't posted in a week, and I guess because I wasn't sufficiently aggravated yesterday, I decided to fire up the 'ol web browser and check out how the Obama administration is spinning to its liberal base the president's nomination of Solictor General Elena Kagan to the Supreme Court. Naturally, then, I decided to  check out what the "nonpartisan" Center for American Progress had to say. Sure enough -- and despite, or cynically, perhaps because of, Kagan's stated view that someone merely suspected of helping finance al Al Qaeda can be held indefinitely without trial -- there is a "Progressive Case For Elena Kagan" to be made, slavish devotion to executive power now a liberal virtue in the age of Obama.

The defense of Kagan, which is as thin as her record, begins by noting an open letter she signed opposing legislation from Sen. Lindsey Graham (R-SC) that would have stripped federal courts of their ability to review the cases of those imprisoned at Guantanamo Bay. But while welcome news, one signature does not outweigh Kagan's well documented support for presidential unilateralism, nor does it seem to have much angered Graham, who told me and other reporters last month that "I liked her answers on national security" when she was testifying during her solicitor general confirmation hearing.

Illustrating the complete subservience of the liberal establishment to the Democratic Party, the piece then argues that, in the testimony Graham liked so much, Kagan had merely "acknowledged that America may indefinitely detain a known terrorist" -- gee, when you put it so passively it almost seems like it's not the great moral outrage it was when that George W. guy was president -- "yet she was also very clear that such a detention could only occur after the detainee received 'substantial due process' from an 'independent judiciary' in a 'transparent' process."

A few things are worth noting here, beginning with the fact that each quote the author highlights was in fact uttered by Senator Graham during that exchange, not Kagan, who had simply answered that, yes, "absolutely" she agreed with the South Carolina Republican that detainees should receive things like "due process" in a "transparent" manner. Which brings me to my second point: the position Kagan endorsed -- and the one embraced by Graham and the Obama administration -- holds that someone suspected of involvement in "terrorism" may have their status reviewed in a habeas corpus proceeding with a federal judge, which isn't exactly the same thing as the "due process" they teach kids about . . . well, actually, never, if my schooling was typical. Indeed, there's more than a few differences between the Bush/Obama/Kagan theory of justice and the actual kind. For starters, there is no trial if one's unfortunate enough to be suspected of terrorism while living in a Muslim country, obviously. Instead, a judge is allowed to review secret evidence in the comfort of his office and decide whether the government is legally entitled to hold someone prisoner. There is no jury. There is no cross-examination. And, as more and more people are concluding (not Kagan, mind you), there is no justice -- though if we're meaning to refer to the legacy of Teddy Roosevelt and Woodrow Wilson, a good case could be made that it just may be "progressive".

The Center for American Progress also notes that, while a great defender of the rights of gays and lesbians, Kagan has in her capacity as solicitor general "scrupulously complied with her legal duty to defend federal laws that she personally disagrees with, including anti-gay policies like DADT and DOMA." But there's an explanation! "For progressives, her unwillingness to cast aside these bigoted and inexcusable policies may be a disapointment, but her conduct as Solicitor Generalo also reflects her understanding that a public official must first be loyal to the law."

Which brings us to the problem of "the law". I have to question the morality of anyone who would rather adhere to the letter of a tyrannical dictate than do what even they would privately concede is undoubtedly The Right Thing. When the law's unjust, defending it places you on the opposite side of justice; indeed, it makes you an active participant in the perpetration of an injustice. But then, someone looking to become the official legal advocate of an American president in the 21st century would have to know that -- war on terror, war on drugs, anyone? -- yet another strike against Kagan. Confronted with having to defend extreme claims of executive power, with having to help perpetrate yet another injustice, did Kagan do the only proper -- the only honorable -- thing one should do in such a situation: resign? Of course not; there are careers to think about, after all. No, she quite vigorously defended heinous laws and assertions of sweeping power by the president, so much so that said president has now rewarded her with a nomination to the highest court in the country. That Kagan was merely doing her job -- just following orders, if you will -- is the rationalization of someone who can make no honest defense of her actions, and, it should be noted, the every one employed (unsuccessfully) by some other particularly unsavory, German-speaking characters with whom I sure wouldn't want to be associated.