ANOTHER ARGUMENT IN MS KAGAN'S FAVOR:

New Justice Could Hold the Key to Presidential Power (CHARLIE SAVAGE, 5/25/09, NY Times)

[J]udge Diane P. Wood of the United States Court of Appeals for the Seventh Circuit, has expressed doubts about claims of sweeping executive powers in national security matters. Another, Solicitor General Elena Kagan, has a history of advocating for presidential powers in domestic matters, along with a mixed record of statements on counterterrorism issues.

The scope of executive power has become the subject of a profound debate since the Sept. 11 attacks. Bush administration lawyers argued that the president’s war powers could override laws and treaties, a theory at the heart of policies on harsh interrogations, surveillance without warrants and the detainees at the prison at the naval base in Guantánamo Bay, Cuba.

Some of former President George W. Bush’s greatest setbacks came when the Supreme Court rejected such arguments. And while Mr. Obama has not embraced the Bush administration’s most expansive theories, he appears to be on his own collision course with the court.

His administration is appealing a ruling that some detainees in Afghanistan have habeas corpus rights. And he has announced other policies, including revised military commissions and a system of prolonged preventive detention without trial, that are likely to be challenged.

Moreover, the broad powers Mr. Obama has employed in the economic crisis, like his virtual takeover of the American auto industry, could generate a new category of cases that would turn on how much deference the court gives to the executive branch.

“If Obama is really serious about national security, he ought to be looking for a justice who won’t try to micromanage in this area,” said Ed Whelan, a Bush administration lawyer. “He’ll also want a strong proponent of executive power to review his aggressive domestic measures.”