Elena Kagan is Not Obama’s Harriet Miers

harriet-miers-elena-kagan A meme is emerging that Elena Kagan is Obama’s Harriet Miers.  A good example of this line of thinking is Monica Crowley’s piece at Big Government, “Kagan: THIS Harriet Miers Will Get Confirmed.”

I was an early critic of the Miers pick (as was James).  It was impossible to look at her resume and think that she was a good pick for the high court.  To quote Charles Krauthammer at the time:

To nominate someone whose adult life reveals no record of even participation in debates about constitutional interpretation is an insult to the institution and to that vision of the institution.

There are 1,084,504 lawyers in the United States. What distinguishes Harriet Miers from any of them, other than her connection with the president?

The problem with Miers was, at its root, the fact that she had zero record of being intellectually engaged with the Constitution.  Yes, she had been a very successful lawyer.  That is not, however, the same thing as being a legal scholar.  Say what one will about Kagan (and much, no doubt, will be said).  However, one cannot get tenure at the University of Chicago’s Law School and a full professorship and deanship at Harvard if one has no record of intellectual engagement with the law.  Further, being Solicitor General (although granted, for a relatively brief time) is a resume enhancement for someone going to the Court in a way that being a White House Counsel (as Miers was) is not.

The Miers comparisons are vested in the notion that the main criticism of Miers was her lack of judicial experience.  However, while that was raised, it was raised in a broader context of her lack of experience in general of dealing with constitutional matters.  Indeed, her lack of judicial experience was just one of her “lacks.”

Look, I am not saying the Kagan is the most gifted, most scholarly choice that Obama could have made.  However, for reasons I detailed at least in part this morning, the most gifted legal scholars are not going to be nominated.  First, they are likely too old and second (and more importantly) the only way we would really know if they were gifted legal scholars in the first place is if they had written a lot on the subject.  Sadly, our politics have evolved to the point that such a person is considered ineligible for nomination.  The worst thing a nominee can have is an extensive publication record on intellectually difficult topics.  For example, can there be any doubt that someone like Lawrence Tribe isn’t more qualified than Kagan?  However, one can readily imagine the rather heated (shall we say) response from the GOP to such a nomination.

I am sure that Kagan isn’t the person I would nominate were I the president.  However, there really is no comparison to Miers.

FILED UNDER: Law and the Courts, US Politics, , , , , ,
Steven L. Taylor
About Steven L. Taylor
Steven L. Taylor is Professor of Political Science and Dean of the College of Arts and Sciences at Troy University. His main areas of expertise include parties, elections, and the institutional design of democracies. His most recent book is the co-authored A Different Democracy: American Government in a 31-Country Perspective. He earned his Ph.D. from the University of Texas and his BA from the University of California, Irvine. He has been blogging since 2003 (originally at the now defunct Poliblog). Follow Steven on Twitter

Comments

  1. Steve Plunk says:

    I’m wondering how a person gets tenure at Univ. of Chicago with the low number of published works that’s being reported. Of course once tenured she could easily move to Harvard and then on to administrative duties.

    We could all play the “she’s not as bad as…” game but it does matter that she lacks the paper trail and experience expected of a nominee. I say let the politics play out and nominate a more qualified scholar.




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  2. Zelsdorf Ragshaft III says:

    One of the problems with this Nation is we have come to believe the constitution is an intellectual document. It is not. It is the framework of laws, the contract between the goverment and the governed, which sets out what and who gets to do what and to whom. I do not guess the age requirement for a person to hold the office of President is open to interpretation. Neither is the requirement they be “natural born citizens”. Which means BOTH parents were U.S. citizens at the time of birth. Not one U.S. and one a subject of the British Crown. That is another matter. The constitution was submitted to the states for approval. Why is it a judge can decide what it says. It says what it says, not what a judge decides what it says. Judges are to decide if passed legislation which has become law fits within the framework of the constitution. Kegin is a lesbian and therefore not mainstream. She has zero judicial experience and not paper trail worth reading, but then what would you expect from a President with zero executive experience?




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  3. george says:

    Kegin is a lesbian and therefore not mainstream.

    Didn’t realize you hung out in lesbian circles – so far she’s denied it and no woman has come out and publicly claimed to have had sex with her, so I’m guessing you must have close women friends who’ve slept with her?

    Its interesting that both the right and left wings are very unhappy with her, I wonder if whether she’s like Miers or not, she will share that fate.




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  4. Drew says:

    Calling all lawyers!

    Help me out. No one would have coronary bypass surgery by a non-practicing academic. I doubt people would be happy with even some lower level judgeship being filled by someone who is not a judge.

    Isn’t it just plain common sense that the highest court in the land deserves better? Is politics so clouding to common sense that this nomination makes sense?




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  5. Drew says:

    george –

    Yeah, but Tiger Woods did.




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  6. Zelsdorf,

    Your definition of “natural born” citizenship is wrong: if you’re born here, regardless of your parents’ status, you’re a citizen. Also, if congress has made allowances for citizenship for foreign born people (military kids, etc), they’re citizens also.




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  7. sam says:

    Neither is the requirement they be “natural born citizens”. Which means BOTH parents were U.S. citizens at the time of birth.

    Bullshit. See 14th Amendment, Section 1:

    All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

    Moron.




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  8. sam says:

    Well, how about the guy Nixon kept calling Renchburg, Drew?




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  9. sam says:

    Lemme help you out here, from Doug below:

    [P]rior to being selected by President Nixon, William Rehnquist’s experience consisted of being a Supreme Court Law Clerk, thirteen years of private legal practice, and two years as an Assistant Attorney General under John Mitchell.




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  10. sam says:

    Finally, Eugene Volokh puts all this lack of scholarship stuff to rest, Elena Kagan as Scholar:

    Let me begin with some objective factors, rather than my own evaluation of Kagan’s scholarship. As this excellent SCOTUSblog post chronicles, Kagan was a working scholar from 1991—95, and then 1999—2003. Between those years, she worked in the Clinton Administration; after those years, she was dean at Harvard Law School, a position that these days leaves its holder with very little time to do serious scholarship. In those eight years, she wrote or cowrote four major articles (linked to here), Presidential Administration (Harv. L. Rev. 2001), Chevron’s Nondelegation Doctrine (Harv. L. Rev. 2001, cowritten with David Barron), Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine (U. Chi. L. Rev. 1996), The Changing Faces of First Amendment Neutrality: R.A.V. v. St. Paul, Rust v. Sullivan, and the Problem of Content-Based Underinclusion (Sup. Ct. Rev. 1993). She also wrote three shorter but still substantial pieces, When a Speech Code Is a Speech Code: The Stanford Policy and the Theory of Incidental Restraints (U.C. Davis. L. Rev. 1996), Confirmation Messes, Old and New (U. Chi. L. Rev. 1995), and Regulation of Hate Speech and Pornography After R.A.V. (U. Chi. L. Rev. 1993).

    Quantitatively, this is quite good output for eight years as a working scholar. It looks a lot smaller if one looks at her career from 1991 to 2009, when she was appointed Solicitor General — but for the reasons I mentioned above, that’s not the right way to look at it.

    [I]t seems to me, is a successful scholar whose interests have extended beyond scholarship, to government service and to educational institution-building. As a result, she hasn’t written as much as she would have had she only been interested in scholarship (though I suspect that her time in the Clinton Administration helped her produce her administrative law articles). But that reflects the breadth of her interests, and not any intellectual limitations.




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  11. Drew says:

    Its a serious question, sam.




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  12. Wayne says:

    Steven
    You said that Miers was a successful lawyer but was unqualified because of having “zero record of being intellectually engaged with the constitution”. Yet you think Kagan is because she has “intellectual engagement with the law”. Intellectual engagement with the law is not the same as intellectually engagement with the constitution. Miers as a successful lawyer had intellectual engagement with the law.There is a lack of consistent thought there.

    Arguing that the Solicitor General who supervises attorneys arguing before the Courts makes her that much more qualified than a Chief “Legal” advisor to the President is pretty weak. It strikes me as the same type of argument as “she qualified because she went to Harvard and the other one didn’t.

    IMO neither one is a good choice for Supreme Court Justice. However looking at their resume Miers was just as qualified as Kagan.




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  13. sam says:

    OK, here’s a serious answer. In a real sense, Supreme Court justices are not judges. The kinds of decisions they hand down, decisions based on their interpretation of what the Constitution means, are foundational. The Court’s decisions, in effect, tell judges how to judge. I can see no reason why the execution of the office requires one to have been a judge. (Indeed, I’d go so far as to say one need not even be a lawyer.)




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  14. steve says:

    “Its a serious question, sam.”

    We have a long history of appointing people who have never been judges. At this point, the primary prerequisites are relative youth and a lack of a paper trail. My impression is that most of the people at the law blogs are less concerned than most of us. Volokh is far and away the best right of center (libertarian leaning) legal group in the blogosphere and they seem to think she is well qualified.

    FTR, I am concerned about her views on deference to the POTUS. It is unclear if she is as bad as Alito and Roberts, but I hope not.

    Steve




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  15. Derrick says:

    However looking at their resume Miers was just as qualified as Kagan.

    The fact that you say that tells us that you have no earthly idea what their resumes look like.




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  16. James Joyner says:

    You said that Miers was a successful lawyer but was unqualified because of having “zero record of being intellectually engaged with the constitution”. Yet you think Kagan is because she has “intellectual engagement with the law”. Intellectual engagement with the law is not the same as intellectually engagement with the constitution. Miers as a successful lawyer had intellectual engagement with the law.There is a lack of consistent thought there.

    Kagan is a scholar of the Constitution. She clerked for a Supreme Court Justice, wrote articles about it as a professor at a top 6 law school, and now heads up the president’s team of lawyers that argues before the Supreme Court. Miers was a highly successful local attorney.




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  17. anjin-san says:

    Volokh is far and away the best right of center (libertarian leaning) legal group in the blogosphere and they seem to think she is well qualified.

    And since he is not regurgitating GOP/Fox talking points, he will be ignored by the right…




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  18. Wayne says:

    Re “The fact that you say that tells us that you have no earthly idea what their resumes look like”

    http://en.wikipedia.org/wiki/Elena_Kagan

    http://en.wikipedia.org/wiki/Elena_Kagan

    Granted they didn’t send me their official resume but if you have it please post it. Also if you have any specifics as why Kagan is a much better nominee, please post it.

    Saying you are an idiot, stupid, have no idea what you are talking about, etc doesn’t do much for the conversation except to display your personality.




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  19. Wayne says:

    James
    Fair enough but that wasn’t in Steven’s article or argument. Although if she has such great Constitution experience than why isn’t there much of a paper trail on her.

    Miers had an good deal of legal background and in areas that she had to deal with constitutional concerns.

    Just curious, would Hillary Clinton or any other Former Senator be qualified to be Supreme Court justice? Would anyone that didn’t have an extensive background in the Constitution, be qualified?




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  20. Drew says:

    sam –

    What James just wrote is closer to what I was looking for. I haven’t had time to really look deeply into Kagan’s background, and probably wouldn’t have the expertise to evaluate it.

    Skipping all the partisan commentary out there, I have seen a number of references to her lack of experience as a judge, and absence of a rich or noteworthy history in the literature. It doesn’t exactly seem to be an outrageous question to inquire about her qualifications, and how Obama came to the conclusion that she merited a position one would assume should be reserved for the cream of constitutional law minds.

    I can understand the argument that an academic scholar (as opposed to a practicing judge) might be qualified, although my personal experience suggests that actually practicing one’s craft and gaining from those experiences is usually preferred. (To use my earlier analogy – do you want your bypass surgery done by a guy who teaches coronary artery anatomy, or a guy who does them?) Maybe the law is different. Hence my “calling all lawyers.”

    Lastly, James just referred to her as a “scholar.” Perhaps, but so far that’s not the general tone I’m reading in the sphere.




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  21. Derrick says:

    Saying you are an idiot, stupid, have no idea what you are talking about, etc doesn’t do much for the conversation except to display your personality.

    Wayne,

    You said that their resumes were the same, which is clearly false, as James more tactfully commented, and doesn’t leave ANY room for discussion. If you want to be engaged, then say something of which is reasonable. Maybe, “I just don’t think Kagan is qualified enough.” or “Kagan’s resume doesn’t have the judicial experience to be a SCt judge”. Any of those would be reasonable claims that one could argue even if we disagree, but you didn’t do that. I know that its commonplace on blogs to just throw red-meat comments to get people riled up, but if you want to be seriously engaged then seriously engage.




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  22. anjin-san says:

    Well Wayne, since you are posting Wikipedia links, why don’t you take a look at Sandra Day O’Connor’s, then explain to us how she was qualified to sit on the Supreme Court and Kagan is not, based on their relative experience.

    http://en.wikipedia.org/wiki/Sandra_Day_O'Connor




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  23. James Joyner says:

    Lastly, James just referred to her as a “scholar.” Perhaps, but so far that’s not the general tone I’m reading in the sphere.

    As Eugene Volokh (quoted upthread) and others have noted, she has a pretty impressive publication record for someone who graduated law school in 1986 and spent as much time in government and academic administration as she has. She’s not prolific compared to someone who has been a law professor since 1986, however. But she’s clearly expert on the Constitution and several issues surrounding it and intellectually curious at a high level about those issues.

    I actually tend to agree with your larger point that we should have Justices who have practitioner careers in addition to scholarly ones. My objection to Miers was that she didn’t have the threshold evidence of intellectual engagement with the issues, not that she spent her career in “the trenches” rather than the “ivory tower.”




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  24. sookie says:

    However, one cannot get tenure at the University of Chicago’s Law School and a full professorship and deanship at Harvard if one has no record of intellectual engagement with the law.

    Is it possible for a good intellectual, to get enough of a bump to achieve these mile stones, by being in a real or perceived protected class (times 2??)?

    Further, being Solicitor General (although granted, for a relatively brief time) is a resume enhancement for someone going to the Court in a way that being a White House Counsel (as Miers was) is not.

    True. So how did she do as Solicitor General in those hand full of cases she argued before the Court?

    Do we want people on the court who are only ‘academic intellectual legal scholars’, with very little to no real world experience in the court room?

    I believe that all the current justices, including the last 3, were on the bench a number of years prior to their nomination to the Court. I’m pretty sure Kagen has never been a judge or spent much time in the court room for that matter, except for those few cases in the last year.

    If correct, that alone (in sane minds) should squash her nomination. And yes it does sort of make her a Harriett Meyers, as she will be in need of a lot of on the job training, which was Meyers failing. There could have been other issues with Meyers. Don’t know she didn’t make it that far in the process but lack of experience killed her nomination and it was killed by conservatives… and she had a fair amount of court room experience as an attorney.

    I expect Kagan will be confirmed though, because lack of experience is only a relevant factor when applied to conservatives.




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  25. JusiceForAll says:

    “Kagan is a scholar of the Constitution.”

    No, actually, she isn’t. Her specialty is administrative law. She’s done almost no work in constitutional law. I see a lot of people accepting Kagan on spec. In reality, she isn’t much more qualified than Miers. Compared to the man she is to replace, her appointment is an insult to Justice Stephen’s life-long dedication to the Constitution and the large volume of legal experience and scholarship he brought with him to the Court. Her arguments to the Court as Solicitor General have been disappointing at best. To be honest, given the many highly qualified people President Obama could have chosen, his selection of Kagan is both surprising and disappointing. He had the opportunity to put a lion on the Court. What is he thinking?




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  26. Drew says:

    James –

    I guess the relevant commentary posted by Ann Althouse here:

    http://althouse.blogspot.com/2010/05/how-good-will-elena-kagan-be-at.html

    …is the sort of thing I’m getting at. It seems we could do better. So it naturally raises conjecture.




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  27. Wayne says:

    Derrick
    I did not say their resume were the same just that they were somewhat comparable. I did miss what James pointed out the first time I scan their resumes. However Miers still has a good legal resume.

    Re” If you want to be engaged, then say something of which is reasonable. Maybe, “I just don’t think Kagan is qualified enough.”

    Try reading my post.

    “IMO neither one is a good choice for Supreme Court Justice. However looking at their resume Miers was just as qualified as Kagan”

    News flash, I have never said either one was unqualified. Only that neither one is a good choice from the information I have. Maybe after discovery I will change my mind. Maybe not. At the moment I still think that many better choices could have been made.

    The main complaints as I recall about Miers was her lack of bench experience and that she was friends with the President. I am just pointing out the same is true with Kagan. Does that mean that IMO that it disqualifies either one? No and I don’t. I just pointing out that against Miers some of you thought so.It just cracks me up how something is so important to someone one time but the next.




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  28. An Interested Party says:

    I expect Kagan will be confirmed though, because lack of experience is only a relevant factor when applied to conservatives.

    Who knew that William Rehnquist was a raging liberal…




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  29. sookie says:

    Who knew that William Rehnquist was a raging liberal…

    As has been pointed out in another thread on Kagan’s qualification, a lot has changed in the last 40 years. Actually since the country’s inception.

    Do we want a justice without a law degree? There have been justices who didn’t have one. But do we want one on the court today?

    I doubt a conservative without a fairly strong lower court pedigree could be confirmed today. We’ll see if a liberal can.




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  30. HistoryLover77 says:

    I voted for Obama.

    and I am embarrassed by Kagan’s appointment.

    Kagan and Miers are two sides of the same coin.

    It proves the old adage that,many times,
    it is not qualifications that get you the plum
    assignment or position, it is who you know.

    Kagan, like Miers would get an “A” grade for
    schmoozing and networking.

    Miers was the first Woman Pres of the Dallas
    and the Texas Bar Associations and a partner in
    a prestigious Texas law firm.

    Kagan gets tenure at not one, but 2 law schools
    without publishing any major heralded scholarly
    works and just a few “ho hum” law review
    articles and book reviews over a few decades?!

    Law students publish more than Kagan did.
    Publishing many, heralded scholarly articles
    are a prerequisite for tenure at any law school in the country, apparently with the exception of
    Chicago and Harvard Law.

    Kagan used cronyism to get tenure at both schools.

    Kagan used cronyism to get the Dean’s job.

    It would take great incompetence to screw up
    being Dean of Harvard Law, with the largest endowment in the country and a job of babysitting
    the kids of rich alumni.

    Her great accomplishment there was to get free
    lunches for prima donna law professors.

    Kagan then serves as a low level staffer for
    Pres Clinton and 1 year as Solicitor General
    where she finally sees the inside of a courtroom
    and botches/loses the cases she takes.

    Granholm of Michigan, Napolitano of Arizona
    or Leah Ward Sears(first African American Woman to be Chief Justice of the Georgia Supreme
    Court) are much better qualified choices.

    However, I forgot, they didn’t go to law school
    with and work with the President.

    Give me a break!!




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