Elena Kagan: Justice Stevens Redux?

As the Senate considers President Obama’s appointment of Solicitor General Elena Kagan to the Supreme Court, it should reflect on the Court’s increasing role in shaping national security. Specifically, Senators should consider President Obama’s authority as commander-in-chief to use military commissions, Predator drone strikes, prolonged detention, and other robust yet necessary wartime counterterrorism policies he has continued from the Bush Administration. Assuming that Senators want to reserve to the office of the President those powers specifically enumerated in the Constitution, preserve those specific policy tools to assist the United States’ war against al-Qaeda, and deny foreign terrorists held in Afghanistan access to U.S. federal courts, they should question Kagan to ascertain whether her jurisprudence—at least as it applies to terrorism cases—will mirror Justice John Paul Stevens’s brand of judicial activism. Given that President Obama has stated that he plans to replace Justice Stevens with a person of “similar qualities,” such an inquiry is not only reasonable but absolutely essential.

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