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Wha? Conservatives Dismiss Kagan As Just Another Harriet Miers (VIDEO)
Harriet Miers and Solicitor General Elena Kagan
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It may seem to be an absurd -- outrageous -- comparison. But several conservatives have, in the last couple days, compared Supreme Court nominee Elena Kagan -- the country's first female solicitor general and the first female dean of Harvard Law School -- to Harriet Miers. Yes, that Harriet Miers.
President George W. Bush nominated then-White House counsel Miers to replace retiring Supreme Court Justice Sandra Day O'Connor in 2005 -- though he was forced to withdraw the nomination after she came under heavy bipartisan criticism for being a Bush crony out of her depth in the rarefied air of the Supreme Court.
President Barack Obama nominated Kagan to the Court on Monday. While Republicans have generally been playing nice so far, some are taking a rather odd line of attack against Kagan.
Yesterday, Sen. John Cornyn (R-TX) suggested that Miers was, in some ways, more qualified than Kagan.
"Do you think Harriet Miers was more qualified than Elena Kagan for the court?" Savannah Guthrie asked on MSNBC.
"I think certainly by virtue of her practical legal experience, Ms. Miers had eminently more experience as a lawyer," Cornyn said.
Then last night, Rep. Mike Pence (R-IN) went even farther on Fox News, saying, "I don't see very much difference between this nominee and Harriet Miers."
The criticism on Harriet Miers -- for good or for ill, a criticism that was sustained by the American public -- was that she was a political lawyer for the administration. She had no judicial background whatsoever.
Pence then said he hopes and expects Kagan will get the same reception Miers did.
The Harriet Miers nomination proved the American people expect that there will be nominees presented by administrations and by presidents who have a record, or at least who have a career of experience, where we can determine their judicial philosophy, determine their judicial temperament. And quite frankly, the president's nominee has all the qualifications of Harriet Miers, and I think and hope and trust will have the same reception that she got.
Greta Van Susteren punctuated that discussion by saying that treatment of Miers had been "abundantly unfair" and that "no one ever gave Harriet Miers a chance."
And credit where credit is due: Bay Buchanan seems to have started the nonsense off on Monday night, when she suggested on CNN that Obama has "dummied down the Supreme Court."
"What makes her qualified?" Buchanan asked of Kagan. "Being a president of Harvard makes you qualified? It does not."
"He has dummied down the Supreme Court," she continued. "He has given two of the best appointments of his administration to people who are not the best and the brightest, and that's unfortunate."
Buchanan also said the difference between Kagan and Miers "is Ivy League. That's it."
This woman does not have any -- she's a blank sheet. The difference between her and Harriet Miers is Ivy League. That's it. And so you have to wonder, is she truly qualified?
Even Jon Stewart is getting in on the fun, declaring last night that Kagan's "exactly like Harriet Miers, except for the dumb part."
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What's particularly amusing about all of this is that many Republicans defended Miers' experience in 2005.
Media Matters has rounded up some choice examples, including this from Corynyn:
2005: One reason I felt so strongly about Harriet Miers's qualifications is I thought she would fill some very important gaps in the Supreme Court. Because right now you have people who've been federal judges, circuit judges most of their lives, or academicians. And what you see is a lack of grounding in reality and common sense that I think would be very beneficial.2010:Ms. Kagan is likewise a surprising choice because she lacks judicial experience. Most Americans believe that prior judicial experience is a necessary credential for a Supreme Court Justice.
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mans_best_friend
May 12, 2010 1:26 PM
You were expecting truth and honesty?
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mcc
May 12, 2010 1:40 PM
"What makes her qualified?" Buchanan asked of Kagan. "Being a president of Harvard makes you qualified? It does not"
What would the dean of a law school know about law?
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cwnidog
May 12, 2010 1:44 PM
I expect to get intellectual consistency and ethical behavior from the GOP the day after I win the lottery.
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mans_best_friend
May 12, 2010 1:55 PM in reply to cwnidog
This is the party in which a leading gubernatorial candidate proudly insists he does not believe in evolution. They wear ignorance like a badge of honor.
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Model271
May 12, 2010 4:45 PM in reply to mans_best_friend
Re Republicans and evolution, it seems to me that so few of them believe in it because as a party they began with Abraham Lincoln and ended up with George W. Bush.
And Miers only claim to fame was as Bush's legal dog-robber. Just as any military-officer pretensions the Purse-Lipped Piece of Shit might have had were hollow and masturbatory, so any aspirations Harriet ("Is there anything she won't do for that idiot?") Miers had to the Supreme Court were the product of a weak and indulgent self-delusion.
And now that notorious narcissist Cornyn equates Miers with Kagan.
The cynicism found in the empty space inside these people is chilling.
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Jaycal
May 12, 2010 4:36 PM in reply to cwnidog
I think the odds are better for your lottery chances.
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traitorjoe
May 12, 2010 1:45 PM
John Roberts is much more qualified as we could tell from his arguments in front of the Supreme Court in 2000 that it wouldn't be "fair" to Governor Bush if Florida recounted their votes because Bush might lose.
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jsdc007
May 12, 2010 2:04 PM
The only difference between Bay and her brother Pat is the botox.
The stupidity, nastiness and verbal diarrhea are identical.
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Fosberry
May 12, 2010 2:16 PM
It's not just conservatives who have made that comparison. Paul Campos and to a lesser extent Glenn Greenwald have compared this nomination to Miers'. Greenwald's criticism focuses on the fact that Kagan has relatively little written record on major issues, and he believes progressives should not simply "trust" that Kagan will be a solidly liberal voice on the court, just as conservatives who fought against the Miers nomination did not trust that she would be a solid conservative vote (and their opposition was ultimately rewarded with the confirmation of Samuel Alito). Campos's criticism has been more scathing, writing, "... if Kagan is a brilliant legal scholar, the evidence must be lurking somewhere other than in her publications."
That some on the right seem rather open to her nomination suggests that at least a few Republicans may consider her about as close to a centrist as anyone Obama might nominate. Thus some on the left wonder whether this might be a wasted opportunity to try to pick a more liberal justice, while the Democrats are likely closer to 60 votes in the Senate now than they will be later in an Obama administration.
And while we're on the subject of Miers, I suspect progressives would have been better off with her on the court than Samuel Alito: first, she quite possibly (even likely?) would not have been nearly so solidly conservative; second, even if she were, presuming criticisms of her lack of intellectual heft were reasonably on target, she would have been a less effective advocate for conservatism than Alito.
The comparison that I think fits better, though, is the David Souter nomination. Neither nominee has too much of a written record, and there is at least some concern that the nominee may not be as ideologically "correct" as partisans would like. Also, neither nominee ever married (not that there's anything wrong with that!).
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Reece
May 12, 2010 3:29 PM in reply to Fosberry
You, sir, are correct.
Kagan is just another political flack who has risen through the ranks because she happens to know the right people. There is nothing in her resume that indicates she is in any way qualified to be a Supreme Court Justice. Nor is there any evidence that she is qualified to be Solicitor General. (As NPR reported, she had never argued a single case of any kind before any court until she was appointed SG by Obama.) Nor can I find any reason to think she was in a good position to become Dean of Harvard Law. She worked in the Clinton White House, but that's about it.
We're getting screwed with this pick, people. It'd be nice if some of you would at least not rush into the bedroom.
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big jonny
May 12, 2010 4:09 PM in reply to Reece
Two points:
1) if nothing in her resume indicates that she is in any way qualified to be a Supreme Court Justice, what in her resume makes her unqualified? Or, is there no inverse relationship?
2) The President picks, the Congress vets. The President can pick whomever he (or, someday, she) pleases, the due diligence then falls upon another branch of government. If this second branch does not preform, how is it the President's fault?
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Geoff Johnson
May 12, 2010 5:34 PM in reply to big jonny
Your first point is a bit ridiculous. Obviously for any job, much less an appointment to the high court, the burden of proof is on those arguing that a person is qualified. If you hand a thin resume to a prospective employer and they say, "I don't see much on here that suggests you are qualified," the reply "But is there anything there that says I'm not?" is not going to win you the job, though you would get laughed at. That seems to be what you are trying to say with respect to Kagan.
Personally I don't really question Miers qualifications per say, I just don't think she has enough of a record for us to properly gauge her judicial philosophy, and now she says (contrary to her views in the 1990s about senate hearings for SCOTUS nominees) that she will abide by the traditional practice of not answering many questions senators pose. In the end we're going to put someone on the Supreme Court knowing very little about what they think about the law. That's dumb.
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Red XIV
May 12, 2010 11:50 PM in reply to big jonny
Your second point isn't wrong, per se, but it's certainly incomplete. While it's up to the Senate to approve or reject the President's nominee, it's also the President's responsibility to make a good pick.
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calbearinillinois
May 12, 2010 4:26 PM in reply to Reece
You don't know anything about the upper strata of American legal culture, do you? She was top of her class in law school, a SC clerk, an exceptional teacher who then served in the Clinton Admin before going back to Harvard and becoming dean. Not one of those is a gig you get because you "know the right people". As dean she's gotten exceptional reviews. You don't last two minutes as the dean of Harvard law without a unique skill set, including intellectual heft and the ability to work with a diverse group of people. The SG is nicknamed the 10th Justice for a reason. Kagan got the nod for that because of her intellect and background, not because of any personal connections. At the time, everyone lauded her intellectual capacity and ability to handle the sorts of issues that come before the Supreme Court. Did she become stupid in her time in this job? Has she done something in that time to suggest she's in over her head? Or are you just trying to find a reason to be unhappy since the President didn't nominate a critical legal studies scholar who advocates for the dismantling of the oppressive, white male dominated legal system?
If you understood what has happened in the last 30 years or so with American law schools, you'd know that most professors in the Ivy League (or really anywhere else) have only practiced law for a couple of years between clerking and entering academia. That window doesn't afford anyone the chance to have much time in front of any court. Plus, most attorneys practice for years if not decades without doing more than a couple of oral arguments (if they are litigators at all, and lucky enough to get cases where the senior attorneys let them argue instead of hogging those rare plums for themselves). Prosecutors and criminal defense counsel tend to get more time on their feet at earlier stages, but not on the sort of dense issues that come before the Supreme Court. Any time as SG has given her more experience before the Supreme Court than all but a handful of lawyers in America - and none of them would take the pay cut to be on the bench.
You may not like her positions on things, but claiming she isn't qualified or hasn't achieved enough to be nominated is absurd.
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slb
May 12, 2010 4:32 PM in reply to Reece
Oh, please. She was summa cum laude at Princeton, and was awarded a prestigious graduating scholarship there that allowed her to study at Oxford, where she earned a Master of Philosophy. She was magna cum laude at Harvard Law, and supervisory editor of the Harvard Law Review. She clerked for Thurgood Marshall in 1988, while he was on the Supreme Court. These are not chicken-feed qualifications.
In addition, she taught law at both the University of Chicago and Harvard. She didn't just become dean of Harvard Law School overnight.
I'm not making any judgement whether or not she will be a good choice to replace Stevens on the Supreme Court, but I do think it is grossly unfair to dismiss her as simply a political flunkie.
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Geoff Johnson
May 12, 2010 2:44 PM
I do not think it fair to compare Kagan to Miers (for one thing from what we know the former seems to have a lot more intellectual heft--Miers certainly seemed to be a bit of a lightweight).
However it will be interesting to see how this plays and I don't think it's a crazy line of attack for the right. The "she's Obama's crony/lawyer, just like Miers was for Bush" might well score some political points. Or not, it will be interesting to see how the WH handles it. I actually though it was a mistake for Obama to emphasize that Kagan was his "friend" given that the "crony" angle was a predictable one.
There is one similarity between Kagan and Miers though--their records are minimal, and that's the real reason Miers got taken down by the right, i.e. they were not sure she would be on their side. Progressives should have the same fear about Kagan, but unfortunately too many are willing to just have faith that she'll be fine. I hope they are right, but if they're not it's a disaster.
The fact that right-wing attorney Miguel Estrada--the one the Dems filibustered under Bush because they thought he was so dangerous--has said that Obama hit "pay dirt" with the Kagan choice and that she "should be confirmed" is a bit disconcerting to say the least.
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slb
May 12, 2010 4:37 PM in reply to Geoff Johnson
Of course, Harriet Miers was White House Counsel, not Solicitor General. Big difference. Not that the general public has any idea of that, of course.
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hewhohasnoname
May 12, 2010 5:06 PM in reply to Geoff Johnson
"I actually though it was a mistake for Obama to emphasize that Kagan was his 'friend' given that the 'crony' angle was a predictable one."
Initially, I also believed that it was a mistake for Obama to call Kagan his friend. But, after further thought, I think that being forthright about their connection was the best course of action. Had Obama had not acknowledged their ties, it would have appeared that he was trying to hide their relationship -- a posture that would've likely imbued a certain duplicitousness to the nomination. As such, we probably would've been treated to a whole round of "scandalous" articles about how Kagan tried to hire Obama, etc., etc. And the suggestion of "cronyism" would have become a preeminent charge against her nomination.
Conversely, by putting -- at the outset -- some "sunlight" on their relationship, it mitigates (though certainly doesn't eradicate) assertions of "cronyism" and allows the focus to remain on more traditional story lines (e.g., her bio, philosophy, etc.). Thus, I think it was actually the right move for Obama to acknowledge that Kagan is his friend.
On another note, you said the following: "There is one similarity between Kagan and Miers though--their records are minimal, and that's the real reason Miers got taken down by the right, i.e. they were not sure she would be on their side."
That's only partially true. Certainly, the right had questions about Miers' positions, particularly on abortion after it had come to light that she did not adhere to the "zero tolerance" default embraced by most conservatives. But, ultimately, what did Miers in was her rounds on the Hill and the Bush administration's refusal to release many of the records of her time as White House counsel. With regard to the Hill interviews, several Senators came forward to say that they felt that she was unprepared during those interviews; Miers couldn't or wouldn't answer some of their legal questions or she answered them in a way that raised more concerns.
Presumably, even though the Republican base was riled up in opposition to Miers, Republican Senators would have supported her nomination, if she has evinced competency. But, because she didn't, they privately (and publicly in some cases) lobbied the Bush administration to withdraw her nomination. Miers ultimately relented and withdrew herself, and said it was because she did not want to make Dems privy to WH counsel.
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Geoff Johnson
May 12, 2010 5:28 PM in reply to hewhohasnoname
Responding quickly to just one of your points, while there were obvious questions about Miers overall competence even among many in the GOP, the issue inflaming the conservative grassroots was doubt about her position on Roe v. Wade. Many were not convinced that she was fully on the right side of that issue, and obviously that was completely unacceptable to them (i.e. that there was any doubt at all).
Had Miers judicial ideology been more clearly that of a doctrinaire GOP conservative, I think it highly likely her nomination would not have engendered a revolt on the grassroots right, issues of competency notwithstanding.
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hewhohasnoname
May 12, 2010 5:07 PM in reply to Geoff Johnson
"I actually though it was a mistake for Obama to emphasize that Kagan was his 'friend' given that the 'crony' angle was a predictable one."
Initially, I also believed that it was a mistake for Obama to call Kagan his friend. But, after further thought, I think that being forthright about their connection was the best course of action. Had Obama had not acknowledged their ties, it would have appeared that he was trying to hide their relationship -- a posture that would've likely imbued a certain duplicitousness to the nomination. As such, we probably would've been treated to a whole round of "scandalous" articles about how Kagan tried to hire Obama, etc., etc. And the suggestion of "cronyism" would have become a preeminent charge against her nomination.
Conversely, by putting -- at the outset -- some "sunlight" on their relationship, it mitigates (though certainly doesn't eradicate) assertions of "cronyism" and allows the focus to remain on more traditional story lines (e.g., her bio, philosophy, etc.). Thus, I think it was actually the right move for Obama to acknowledge that Kagan is his friend.
On another note, you said the following: "There is one similarity between Kagan and Miers though--their records are minimal, and that's the real reason Miers got taken down by the right, i.e. they were not sure she would be on their side."
That's only partially true. Certainly, the right had questions about Miers' positions, particularly on abortion after it had come to light that she did not adhere to the "zero tolerance" default embraced by most conservatives. But, ultimately, what did Miers in was her rounds on the Hill and the Bush administration's refusal to release many of the records of her time as White House counsel. With regard to the Hill interviews, several Senators came forward to say that they felt that she was unprepared during those interviews; Miers couldn't or wouldn't answer some of their legal questions or she answered them in a way that raised more concerns.
Presumably, even though the Republican base was riled up in opposition to Miers, Republican Senators would have supported her nomination, if she has evinced competency. But, because she didn't, they privately (and publicly in some cases) lobbied the Bush administration to withdraw her nomination. Miers ultimately relented and withdrew herself, and said it was because she did not want to make Dems privy to WH counsel.
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Rockridge
May 12, 2010 3:01 PM
We'd be far better off today with Myers on SCOTUS that Alito, who was nominated in her stead. The Court and political culture would be far better off if Bork had been confirmed, I must now admit. The president should get his/her pick of SCOTUS members. Unless the nominee is a crook, does not get a pass from his/her peers, etc, the Congress should express its views to the nominee and confirm.
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hunter
May 12, 2010 5:06 PM in reply to Rockridge
I agree that we'd be better off with Miers than Alito. But Bork instead of Kennedy!? What planet are you on?
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calbearinillinois
May 12, 2010 3:16 PM
Harriet Miers was a lifelong low level political flack who got raised to WH counsel after Gonzo (also an intellectual lightweight by all accounts) got slid into the AG slot. Before her nomination she had published nothing, never had any interaction with the Supreme Court, never gone through Senate confirmation and was as flagrantly partisan as if Bush had nominated himself.
Kagan is a lifelong student of the law, a former Supreme Court clerk, and the current Solicitor General of the United States (aka the 10th Justice). The role of SG and WH Counsel are utterly different, and a second term (read lame duck) WH Counsel is far different than the #2 person at the DOJ at the start of an administration. Kagan's been confirmed by the Senate once already, her writings on the First Amendment and executive power have been very influential, she's a noted speaker, acclaimed teacher and leader at the premier American law school.
Comparing these two is about as valid as saying Herman's Hermits are musically as significant than the Beatles, since they were both popular British musical groups from the 60s. Or that Thomas Kinkaid (painter of light) is as important an artist as someone like Jackson Pollack since they both were well known at various times.
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Mateo123
May 12, 2010 4:57 PM
This is an awful pick. Really. It's a payback pick. Somewhere along the line Obama made a promise to nominate Kagan. That is about the only way I can explain this selection.
There are many qualified people in the legal community (of which I'm humbly a member). Let's start with her work as Solicitor General. She was confirmed in March 2009. So, she's been at that office for 15-16 months (figuring that she was doing some of the work pre-confirmation). The tenth justice? She's argued six cases before the Supreme Court.
In her first case, the Court gave us Citizens United. Scalia and Alito wanted corporations to be free to give to political campaigns, but the Solicitor General did a very bad job at directing their attention to the key element of the ban on corporate contributions: corruption. We the people lost that case. So did our nominee.
Then there was Salazar v. Buono, mentioned today by Linda Greenhouse, in which the government argued that a litigant lacked standing to sue the government for the cross in the California desert. Why did the litigant lack standing? He was Catholic. Seriously. Only Scalia and Thomas bought that argument. Who raised the argument? The one with the brilliant mind, our nominee.
There will be other cases that the lawyers will sift through and that will shed some light on Kagan's thinking. Politico has a pretty good article on her views while running the domestic policy shop for Clinton. Again, nothing there is too favorable.
I don't think that this is Harriet Miers. I mean, she is brighter than Miers and probably has had some more influence than Harriet Miers in policy circles. Miers had George W's attention and she rose to lead a bar association, but she didn't quite have the brains that most justices have.
But, this is not a Sotomayor pick. At all. This is someone who learned a long time ago that she would be on the federal judiciary and she stopped trying to impress progressives. In the end, it looks like she stopped being a progressive.
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hunter
May 12, 2010 7:48 PM in reply to Mateo123
Citizens United was rather obviously decided long before Kagan ever set foot in the courtroom. Salazar was a terrible case that the administration had no good argument for. When lawyers are forced to take a case with no good argument, they resort to bad ones. If those are the best examples you've got, you haven't got anything at all.
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ZeraLee
May 13, 2010 6:27 PM
Miers actually did have a hearing - about her role in the firing of the U. S. Attorneys. She was a no-show.
She bungled the pre-confirmation interviews so badly even the republicans wanted her gone, so they devised a face-saving exit for her.
She was described as more of a manager of attorneys than a practicing attorney in her own right, and an example of bad cronyism.
This attack on Kagen is worse than guilt-by-association, it is guilt by proxy.
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