Fellow progressives are attacking Kagan for evidently supporting indefinite detentions. Though, as SCOTUSblog points out, Dawn Johnsen, the embattled (and ultimately withdrawn) progressive favorite for OLC appears to have supported Kagan's remarks on the issue:
“Yes, I do agree with Dean Kagan’s statement that under traditional military law, enemy combatants may be detained for the duration of the conflict. That is what the Supreme Court said as well in Hamdi v. Rumsfeld, 542 U.S. 507 (2004). . . . As indicated above, I do not believe that release or criminal prosecution are the only possible dispositions for detainees.”
No one believes that Johnsen was embracing the Bush Administration’s policies, and no one should think that was true of Kagan either.
I'm fairly certain that if Dawn Johnsen had been nominated, the Greenwald camp would be applauding the choice.
My point is that the usual "Obama Is Just Like Bush" peddlers will always find something objectionable about anything the president does. And that's fine, as long as it's fair, rational and productive. The more I read about this line of attack against Kagan, the less fair it seems.
This post at Slate, Elena Kagan is a Progressive on Executive Power, for example, also helps to debunk the Just Like Bush attacks.
Also, Lawrence Lessig makes a strong case for Kagan as a progressive. And this should make you smile:
It is extremely rare for a Solicitor General to tell a justice he is wrong (as Kagan did to Scalia in the argument in Citizens United). But for those of us who know her, that flash of directness and courage was perfectly in character for this woman who knows what she wants, and how to get it.