Yet another instance of internal administrative discord came in the 1993 Supreme Court case US v. Knox. Stephen Knox was prosecuted under child-pornography laws for ordering videotapes that depicted provocatively dressed underage girls. When the case reached the Supreme Court, SG Drew S. Days III joined the ACLU and argued that the government’s stance, which had previously been accepted by the lower courts, was incorrect. Days, respecting the fair-notice element of due process, asserted that the “plain meaning of the statute requires [that] the material must include a visible depiction of the genitals or pubic area of the body.” Then, “all hell broke loose,” Days later wrote, as all 100 senators voted for a resolution to condemn the SG’s brief. The Supreme Court remanded the case back to the Third Circuit Appeals Court, which eventually decided against Knox.
There is, perhaps, no better example of the beneficent combination of an SG’s conscience and his sense of duty than that of Eisenhower SG Simon Sobeloff. When Peters v. Hobby, a 1955 case involving a government program designed to identify communist subversives came before the Supreme Court, Sobeloff — under intense criticism from high-ranking administrative officials — decided he could not argue in support of the government’s previously asserted position. Not only did it violate his conscience, but it also was not in the government’s long-term interest, Sobeloff said. A concerned friend told him he was likely cutting off a Supreme Court nomination. A former colleague, Judge David Bazelon, recounted in a 1974 tribute article in the Maryland Law Review that Sobeloff replied: “I do not take this step because I want to be able to live with my friends. I do it because I have to be able to live with myself.”
With a clear precedent for SG defection or at least disassociation from a noxious or unworthy government position, one cannot claim that Kagan had no choice but to support the government’s more extreme postures that some would argue put liberty and due process in jeopardy.
Ultimately, Kagan leaves us with more questions than answers. That fact alone should give pause to liberals and civil libertarians, wary after eight years of the Bush administration’s detaining suspects without trial, wiretapping citizens without warrant, and interrogating detainees without regard to international-war conventions. And the unavoidable reality is that Obama has quietly — and sometimes not so quietly — continued some of Bush’s most controversial assertions of executive power. Earlier this month, the Obama administration authorized the targeted killing of a US citizen — entirely without due process or, it appears, any process either legislative or judicial — who is thought to be assisting terrorists in Yemen. President Bush never invoked such authority, the New York Times reported.
Whether life begins at conception, or whether gay citizens are entitled to the equal protection of the law — issues on which Kagan’s views are clear and well-known — will likely be the focus of scrutiny in the event Kagan is nominated. It’s too bad that this dog-and-pony show will detract from the real question that needs to be asked — namely, whether Kagan thinks executive authority trumps liberty and individual rights when they conflict in either the national security or law-enforcement arenas.