Elena Kagan: Harriet Miers with an Ivy League Education

“To some degree, the challenge to us is that she’s simply unknown…. Other than the fact that she’s been a great loyalist of the President and she clearly is a good corporate lawyer, we really don’t know much else about her."—Sen. Barack Obama, October, 2005 on Harriet Miers

While I am a big fan of George W. Bush, I wasn’t a fan of Harriet Miers, his failed Supreme Court nominee. However, she deserved a hearing. At least she deserved a hearing as much as the current nominee, Elena Kagan.

Kagan is Harriet Miers with an Ivy League education. President Obama could say the same thing about Elena Kagan that he said about Miers in 2005. But, it’s okay because she’s a liberal. 

President Obama has enough votes to confirm Kagan and as Sen. Lindsey Graham (R.-S.C.) pointed out, “elections have consequences.” In 2008, there was little emphasis put on the makeup of the Supreme Court and how the next President would have a huge impact on that court—and that was a big mistake we may pay for in terms of generations, not election cycles.

Manuel Miranda of The Third Branch Conference said of the Kagan nomination: “The President must be commended for shunning left-wing activists who demanded that he select a Supreme Court nominee who could promise results for the clients that fund their advocacy. He selected a perfectly reasonable nominee for a Democratic President. Where he fell short is that, in Elena Kagan, President Obama has nominated someone who shares his personal ideology but has no judicial record to show the honed skill of judiciousness, i.e. the ability to put aside personal views to render justice.”

Now the test is before the Judiciary Committee in the Senate. “She will sail through” is what most of the pundits are saying. The question still remains: “Is Elena Kagan is qualified for the highest court or just more richly credentialed and with a wider circle of friends than Harriet Miers?” Only time will tell. One can hope she will be the John Paul Stevens of the Obama Administration. Stevens was appointed by a Republican president and turned out to be one of the most liberal justices in recent history.

“For Senate Republicans, talk of filibusters and obstruction is just a distraction. The real question will be how much time and effort they will invest in this confirmation debate,” Manny Miranda contends. “In the Sotomayor debate, fewer than a dozen Senate Republicans went to the Senate floor to speak on the that nomination.”

My hope (and I love the use of hope and change in discussions of the Obama era) is to see many Republicans and Democrats rise to challenge Kagan on the floor of the Senate. This is an unqualified potential justice. She has no record except to defend the banning of books and the banning of the military on Harvard’s Law School campus. As all “Obamatrons,” she’s the smartest person in the room, but maybe that room ought to be at an Upper West Side cocktail party and not the cloakroom of the Supreme Court. 

In her limited record, Kagan has commented on what Supreme Court nominees should possess. In the Chicago Law Review in Spring of 1995, Kagan addressed the topic of judicial nominations. She wrote, “It is an embarrassment that the President and Senate do not always insist, as a threshold requirement, that a nominee’s previous accomplishments evidence an ability not merely to handle but to master the ‘craft’ aspects of being a judge.” She goes on to point out a nominee must demonstrate he or she “has the training, skills, and aptitude to do the work of a judge at the highest level.”

The outcome will be Kagan on the bench of the Supreme Court. However, the record must be clear; she is no better a nominee than Harriet Miers was. She’s not a judge and she’s been more of a political hack than Miers. She’s an Obama loyalist. But as many have said, “Elections have consequences.” President Obama will likely have another Supreme Court nominee in his first term. If he gets another term, he may be replacing a Scalia or Thomas and not just another liberal vote. We can’t stop the nominations of the first term, but we can work hard to win the majority back in 2010 and then defeat President Obama so he becomes that “very good one-term” President he’s talked about in interviews.

We will lose on this one. Kagan will be an associate justice of the Supreme Court of the United States. The lesson of this is elections have consequences and the potential to appoint Supreme Court Justices should be an issue in every presidential election. The legacy of a President is as much the court he leaves behind, as the legislation he signs.