President Obama’s nomination of Solicitor General Elena Kagan to fill the vacated Supreme Court seat of Justice Stevens has provided fascinating insight into the politics of Supreme Court appointments, as well as into media-reactions to them.
In 2005 President Bush nominated White House Counsel Harriet Miers to fill the Supreme Court seat formerly held by Justice Sandra Day O’Connor. Ms. Miers was an experienced lawyer and obviously a smart woman, but a media and political uproar erupted over her lack of judicial experience. She had never sat as an actual judge, at any level, so she immediately came under fire from media and political quarters alike. Ms. Miers had clerked for a judge and had litigated a few cases in courtrooms, but had never even argued Constitutional issues before the Supreme Court. Moreover, she had earned her Juris Doctor degree at Southern Methodist University – thus violating the unwritten rule that Supremes should be educated at “elite” universities; e.g., Harvard, Yale, etc. (This is sometimes called the Ivy Rule.)
In fact, much of the criticism of the Miers-nomination came from Mr. Bush’s own party. Conservatives, in particular, desired appointees of reliable “constructionist” pedigree, in order to avoid being snookered again by moderate-looking nominees who later turned into liberals. Ms. Miers’ thin paper trail left senators (and the public) without an unambiguous clue to her judicial disposition. She seemed like a nice lady, but “stealth liberal” was the fire-bell in the night that awoke conservatives and filled them with terror. Democrats grumbled a little about Ms. Miers being W’s “political crony,” but mostly they happily stood by while Republicans trashed their own president’s nominee. After several weeks, Ms. Miers asked Mr. Bush to withdraw her name to spare him further embarrassment.
Would Harriet Miers have been an effective Justice on the Supreme Court? We’ll never know. I was not enthusiastic about her nomination because I knew her lack of judicial experience would cause problems. I also feared the “Souter Slip-slide” – a term derived from the example of little-known David Souter, who slid inexorably liberal after George HW appointed him to the Court in 1990. But Ms. Miers had served as W’s counsel during both his Texas governorship and his White House tenure. Presumably he knew her well, respected her counsel and trusted her. More than likely she could have done the job creditably.
For his part, Mr. Bush probably thought that nominating Ms. Miers would prevent a repeat of the Senate circus that Chief Justice John Roberts had recently endured. Judge Roberts’ legal record was impeccable, but he was grilled extensively on his attitude toward stare decisis on established Supreme Court precedent, especially with respect to abortion. His obvious disposition toward Strict Construction – i.e., respect for the original intent of the drafters of the Constitution and the writers of various laws – worried Democratic senators who feared that he might vote to overturn Roe v. Wade. He was finally confirmed, 78-22. All Republicans and the lone independent senator voted to confirm; Democrats split, 22-22, with Senators Clinton and Obama voting Nein.
After Ms. Miers withdrew her name, Mr. Bush nominated Judge Samuel Alito – a Princeton grad and judge of the Third Circuit Court of Appeals since 1990. Judge Alito also had a distinguished judicial record, but he endured a bruising senate confirmation battle during which he was accused of racism and gender-prejudice by Democrats – mainly over his membership in Concerned Alumni of Princeton, whose members wanted to limit the number of women admitted to Princeton. Some Democrats darkly saw “inconsistencies” in Judge Alito’s testimony, but his nomination was advanced from the Judiciary Committee by a 10-8 vote. A Democratic attempt to filibuster the final vote on Justice Alito failed, and he was finally confirmed, 58-42 – the second-lowest affirmative vote in history.
All of this is interesting prologue to the Kagan nomination, which is as remarkable for what it has not produced as for what it has. Ms. Kagan is not a judge, and she has never been one. She was Dean of Harvard Law School for a time (which has produced many Supreme Court justices); she has been Associate White House counsel for President Clinton and Solicitor General for President Obama; and she has taught at both the University of Chicago Law School and Harvard Law. But she has not worked as an attorney with private clients, nor argued any cases before the Supreme Court.
Ms. Kagan did receive her Juris Doctor degree from Harvard Law School – thus satisfying the Ivy Rule and automatically qualifying her for the title of “best legal mind in the country.” (Wasn’t it just yesterday that Mrs. Clinton held that title? How time flies.)
What Ms. Kagan’s nomination has not produced, of course, is a storm of protest over her lack of judicial experience – not even from Republicans who raised the devil over Ms. Miers’ lack in that department. Why so quiet now? For Republicans, the answer is fairly simple: they know who Ms. Kagan is; they lack the votes to stop her confirmation; and they have evidently decided not to launch a serious opposition campaign for a variety of reasons. Democrats also know all about Ms. Kagan, even if the public and the news media do not. Democrat leaders have been fully briefed on why Mr. Obama thinks his solicitor general will be an ideal addition to the high court.
Elena Kagan is clearly a far-left legal activist who has the qualities Barack Obama wants in a Supreme Court Justice. The president speaks warmly of her ability to identify with how the law affects “ordinary people” – or some such rubbish – but she is miles away from such an identity in her education and professional experience. Mr. Obama cares not a fig about this. A child could see that the fix is in: Ms. Kagan will use her seat on the Court to protect Mr. Obama’s transformative agenda. If she and The One haven’t talked this over thoroughly, then (as Herman Goering once said) “you can call me Meier.”
Mr. Obama has appointed Ms. Kagan for the same reason “W” appointed Ms. Miers: he knows and trusts her. What some pundits have been saying about her “unknown views” is pure blarney. Ronald Reagan said, “if it looks like a duck and quacks like a duck, it probably is a duck.” Elena Kagan’s political predilections are clear beyond peradventure of doubt. There is nothing “unknown” about them.
In the 1987 De Palma film, The Untouchables, the tough old police sergeant Malone (Sean Connery’s character) says, “Everybody knows where the booze is. The question is: what are you prepared to do?” Eliot Ness had the knowledge and a small, tough force of incorruptible cops. All he needed was the will to strike a decisive blow against a criminal establishment supported by public apathy and widespread official corruption.
For Republicans faced with the Kagan nomination to the Supreme Court, the question (and the issue) is the same: What are you prepared to do? Republicans are outnumbered at the moment. Democrats own both houses of Congress and the presidency. Trying to stop Ms. Kagan's confirmation would require an enormous effort, which still might fail. A filibuster in the Senate would probably not attract enough support to prevent a vote on her. Moreover, Ms. Kagan automatically enjoys some measure of support from Republicans because she is a woman. Republican senators seem unwilling to go to the wall against her.
In recent days I have heard some pundits say that Mr. Obama has the “right” to appoint whomever he chooses to the Supreme Court. The statement seems to be accepted uncritically by both sides of the political aisle. But is it true? The answer is Yes and No. Certainly the president has the right to nominate his choices. And, arguably, he can expect those choices to be voted on by the Senate, as prescribed by the Constitution. But he cannot routinely expect to have his choices confirmed.
Republican senators who believe they should confirm any presidential nominee to the Court, unless he/she is a known horse thief or hooker, are mistaken. They must have snoozed through Civics 101. It is their responsibility to ensure that presidential appointees are well qualified to take those vital seats on the high court, not just rubber-stamp the president's selections. Political cronies of the president like Abe Fortas (LBJ’s pal), Harriet Miers and Elena Kagan are questionable nominees. Surely we can do better. What’s wrong with insisting that we at least try?
When will Republicans start putting the good of the country ahead of their own political careers? Maybe it’s time to clean house and transform the Grand Old Party into a difference, not just an echo.