Monday, May 10, 2010

Obama's Harriet Miers

President Barack Obama has nominated Elena Kagan to the Supreme Court of the United States; unless you've been unplugged all day, you've probably heard a lot of news and commentary about this nomination. Focus has been on some peripheral issues, including the nominee's private life, but has also zeroed in on what I can't help but think of as the important matters, primarily the nominee's experience, or lack thereof.

Kagan has spent most of her career in academia, with some notable excursions into government work: she was an associate White House counsel under Bill Clinton, was nominated (but never confirmed) to the U.S. Court of Appeals, and was appointed to the position of Solicitor General last year. Aside from that her career has been mostly that of a professor, first at the University of Chicago Law School and then at Harvard Law School, where she went from being a visiting professor to, eventually, the Dean of Harvard Law School (interesting, she was named to that position by then-Harvard president Lawrence Summers, who is now President Obama's economic adviser).

She has never tried a case in court as a lawyer, nor has she ever served as a judge.

When George W. Bush was president, he was criticized--rightly, I think--for a kind of cronyism that made him place old connections in important jobs, regardless of their qualifications. Chief among those instances is the story of Harriet Miers, a Bush nominee for the Supreme Court. Miers' career was seen as far too lightweight for a SCOTUS nominee, and her nomination was scoffed at by the right and the left alike, in a rare moment of bipartisanship.

Some on the left would argue that Kagan's career is far, far more worthy of a Supreme Court nominee. But is it, really? Does having been the Dean of Harvard Law School make up for her lack of judicial experience? Does the existence of scholarly papers and addresses compensate for the absence of rulings which might be examined to show the nominee's judicial leanings?

Why is President Obama's tendency to surround himself with people from his world, people from Harvard or Chicago politics etc., never called "cronyism?" And how is the Senate supposed to evaluate a nominee with such a sparse record of judicial opinions, someone who has never even served as a judge?

When former President Bush nominated Harriet Miers to the Supreme Court, there was a bipartisan outcry. It's too soon to say whether that will be the case this time, but there is some cause to think it might be; there are some on the left who are outraged that President Obama would appoint a woman who once served as an adviser to Goldman Sachs. Whether or not Kagan really is "the next Harriet Miers," I think this is another moment for bipartisanship.


JimmyV said...

I haven't heard much about her yet. I'm mostly unplugged. However, my initial reaction is the same. My first thought in hearing the report was "Harriet Miers."

Siarlys Jenkins said...

Harriet Miers hadn't done much of anything except serve as White House counsel. At this point, it looks to me like Kagan has more substance.

It was not uncommon in the past for presidents to appoint political cronies without regard to judicial experience at all. For example, Harry Truman appointing his old Kansas City crony, Vinson, who incidentally was one of the worst chief justices of all. Eisenhower appointed Earl Warren because Nixon wanted Warren out of his way in manipulating California Republican politics. William Howard Taft was appointed to the bench as a Republican ex-president (who lost a re-election bid some years earlier). Charles Evans Hughes was a failed Republican presidential candidate -- at least the president didn't, e.g., nominate Al Gore or Michael Dukakis. Historically speaking, this is a vast improvement. I'm a little tired of people who have been sitting on appellate courts, taking direction from the Supreme Court, suddenly getting to jump up and, if they can, reverse whatever rulings they may have disagreed with. A fresh voice can be a good thing.

However, on the whole, I would have preferred the appellate judge from Montana, simply to have a way outside the east coast perspective on the court.

By the way, your essay on the irrelevance of Kagan's unknown sexual orientation was excellent, including the closing paragraphs on what may be just reasons for opposing some demands for recognition (e.g. redefining marriage) while fully respecting the integrity of the individuals concerned.

c matt said...

I don't think it is quite as blatant as Miers. Kagan does seem to have more substance, although not particularly good for a judicial position, let alone the highest in the land.

As an academic, her life is mostly writing about what the law should be, as opposed to what it is. But I would imagine a significant portion involves analyzing court decisions, etc. so that helps. Appellate courts are much closer to an academic atmosphere than trial courts are.

On the down side, most academics are focused in specialized areas; judges have to be much more widely experienced. That is definitely a negative against her. Also, never having set foot in a courtroom, whether as a judge or lawyer, is not very good.