Patterico's Pontifications

5/10/2010

Kagan vs Miers (vs Estrada)

Filed under: Judiciary — DRJ @ 7:06 pm



[Guest post by DRJ]

Which Supreme Court nominee has the most diverse experience?

October 2005 — Harriet Miers:

“Ms. Miers was the first woman to become a partner at a major Texas law firm and the first woman to be president of the State Bar of Texas. In 1995, Mr. Bush, then governor of Texas, named her chairwoman of the Texas Lottery Commission and gave her the task of cleaning up that scandal-plagued agency.

Ms. Miers has also served Mr. Bush in the posts of assistant to the president, staff secretary and as deputy chief of staff. Previously, she had been president of a Texas law firm, Locke, Purnell, Rain & Harrell, and when it merged with another Texas firm to become Locke Liddell & Sapp, she became its co-managing partner.

She was the first woman elected as president of the Texas bar in 1992, and the first female to be president of the Dallas Bar Association in 1985. Ms. Miers, who received her bachelor’s and law degrees from Southern Methodist University, was also an at-large member of the Dallas City Council.”

May 2010 — Elena Kagan:

“BLITZER: … at all the various judges out there, and you decided this time you didn’t want a judge?

AXELROD: Well, first of all, Wolf, that’s not the breadth of her experience. In fact, she’s probably got more diverse experience than — than most of the appointees that we’ve seen. She’s worked in all branches of government. She clerked for a very distinguished appellate court judge. She clerked for Justice Thurgood Marshall, a — a legend on the Supreme Court.

She’s represented the United States of America before the Supreme Court for the last 15 months. And, you know, she’s referred to — the solicitor general is referred to as the tenth justice, because they spend so much time working with the court. So she’s well qualified. And I think you’ll have a hard time find observers of the court and legal scholars who would argue otherwise.”

Robert Gibbs has a hard time understanding any Kagan-Miers analogy. When it comes to experience, so do I.

— DRJ

UPDATE BY PATTERICO: You know who Kagan reminds me of a little, in terms of qualifications and experience? Miguel Estrada.

Ivy League undergradate work with honors, Harvard Law school with a position on the law review, clerk at the U.S. Court of Appeals, and clerk at the Supreme Court. Big law firm experience and work at the Solicitor General’s Office.

Sure, there are differences. Kagan is the Solicitor General; Estrada was the Assistant to the Solicitor General. Kagan was a big law firm associate; Estrada was a partner. But the background is quite similar.

I think Republicans should ask Kagan the same questions — and demand from her the same sort of documents — that were asked of and demanded from Estrada. Compare her responses and answers to his — and if they are at all similar, raise holy hell on that basis.

They probably can’t defeat her, but they could have some fun in the process.

UPDATE BY DRJ: The Washington Post is collecting links to Kagan’s writings and other statements.

34 Responses to “Kagan vs Miers (vs Estrada)”

  1. For the record, I was not a fan of Miers’ nomination, in part because I think Supreme Court nominees need judicial experience. But Harriet Miers clearly had diverse real-world experience. Elena Kagan has academic experience and 15 months as Solicitor General.

    DRJ (d43dcd)

  2. Of course Estrada was blocked from a First Circuit post, rather than SC, correct?

    Steve just posted on the other Kagan thread some interesting info.

    MD in Philly (ea3785)

  3. I like the idea of using the same exact verbiage the Left used on Republican nominees on BHO’s nominees. Word for word.

    In fact, I think that a certain Senator Obama said some very ironic things about a GWB nominee to SCOTUS. Time to quote the President?

    Eric Blair (24f66d)

  4. At least we don’t have to worry about Kagan’s economic views, according to Sean Wilentz who advised her on her senior thesis, about socialism in New York City.

    “Americans are more likely to speak of a golden past than of a golden future, of capitalism’s glories than of socialism’s greatness,” she wrote in her thesis. “Conformity overrides dissent; the desire to conserve has overwhelmed the urge to alter. Such a state of affairs cries out for explanation.”

    She called the story of the socialist movement’s demise “a sad but also a chastening one for those who, more than half a century after socialism’s decline, still wish to change America … In unity lies their only hope.”

    But that’s just Kagan immersing herself in the subject. It doesn’t mean she actually has sympathy for socialism.

    “Elena Kagan is about the furthest thing from a socialist. Period. And always had been. Period,” Wilentz explained.

    Don’t you feel reassured?
    /sarc

    Brother Bradley J. Fikes, C.O.R. (9eb641)

  5. Undoubtedly MD was referring to this post by Ed Morrissey over at Hot Air is the interesting information:

    http://hotair.com/archives/2010/05/10/when-elena-met-antonin-and-anthony/

    They have posted a transcript of her oral argument before the USSC in the Citizen’s United case, her “embarrassing debut.”

    Ed Morrissey observes of her performance:

    Kagan started off her argument by misconstruing the issue and then offering a factually incorrect reading of precedent. Both Scalia and Kennedy objected to it before Kagan even had time to get the argument completed, although as the transcript notes, she didn’t pay much attention to them.

    She only argued 5 other cases before the USSC, and as Morrissey points out her performance can be described as mixed at best. It certainly looks to me as if she has an awfully limited amount of experience.

    She never argued a case before the USSC until becoming Solicitor General, and her inexperience certainly seemed to show. Did she ever argue a case in those few short years in private practice, before entering the legal monastary and bouncing back and forth between government service and academia?

    I mean, she never has written a book and has 5 law review articles to her credit. Was she even qualified to be a tenured professor let alone Dean of Harvard Law school? How do you get to be the dean of any sort of school with that little in your curriculum vitae?

    Steve (9a21f4)

  6. She, like her mentor in the Oval Office when at Harvard’s Law Review, was an AA beneficiary.
    There doesn’t seem to be any other explanation.

    AD - RtR/OS! (321c7a)

  7. All of Obama’s nominees will be liberals. The good thing about Kagan is that she is a lightweight. So it is less likely that she could lead a liberal block. Follow in one is more likely. I say confirm her. The liberals should have run the Miers appointment through based on the same logic. Fortunately we got a much better justice when she withdrew.

    Arizona Bob (e8af2b)

  8. First, I wish I’d thought of the excellent Kagan-Estrada comparison but I didn’t. I guess that’s another reason why this is called Patterico.com.

    Second, another reason Kagan reminds me of Miers is that both Presidents vouched for their nominees but the nominees’ records were too thin for people to know how they would make decisions on the Court. Thus, both nominations raise as many questions with supporters as opponents. Conservatives derailed Miers’ nomination. Will liberals do the same for Kagan’s? I doubt it.

    DRJ (d43dcd)

  9. In 2000, Kagan was one of three finalists for the Dean of the University of Texas School of Law but they chose someone else. She later was named Dean at Harvard Law.

    UT Law also turned down George W. Bush.

    Apparently getting turned down by UT Law is a real career boost in politics.

    DRJ (d43dcd)

  10. I updated the post with a link to the Washington Post, which is collecting links to Kagan’s writings and other statements.

    DRJ (d43dcd)

  11. Apparently getting turned down by UT Law is a real career boost in politics.

    Speaking of which, it probably has been mentioned before, but I just looked it up and if Kagan is confirmed then every single member of the Supreme Court will have graduated from either Harvard or Yale Law School. The six most recently retired Justices were law alumni/ae of Northwestern, Stanford (2) and Harvard (3). You have to go all the way back to Thurgood Marshall (Howard Law) to find someone from outside the top tier institutions. What should that tell us about the value of an elite education? If I were President I would nominate an SMU grad like Miers just out of principle. Hell, even Joe Biden (Syracuse Law) would make me feel more comfortable than all these Ivies.

    JVW (08e86a)

  12. Ok, remembering that IANAL and that I had heard this second hand and have not checked on it myself.

    I had heard that some commentators had said that the crucial moment in the Citizens United case came when a Justice asked the government attorney, (I paraphrase) “This case is about a movie but let’s consider, if Citizens United were a book publisher and instead of a film the work in question was a book would the government, under this law, be able to prevent them from publishing the work?” the government attorney answered, “Yes”.
    The account that I read said that at that point, “An audible gasp was heard emitted around the gallery.”

    My question is, Is this an accurate representation of what happened, and if it is was the attorney Kagan?

    (I have said several times that the Justice missed a point, and should have asked what would be the best way of disposing of the offending volumes. Would having large groups of citizens flinging them into bonfires on the Washington Mall be appropriate?)

    Have Blue (854a6e)

  13. Have Blue,

    Here’s a link to the Oral Argument in Citizens United. Kagan’s argument begins at page 35 of the link and she discusses whether the campaign finance rules apply to books at pp. 64-68. The transcript doesn’t reflect it but if there was a gasp, my guess is it came when Kagan told the Court that books couldn’t be prohibited under this law but pamphlets could (at p. 66).

    DRJ (d43dcd)

  14. Thank you DRJ. That should make for interesting reading in the morning. (East Coast 0315 here.)

    Have Blue (854a6e)

  15. A liberal arguing that free speech can be stifled in the name of “equality”?

    Shocka!

    Icy Texan (9dec39)

  16. Also, look at the first sentence she attempted in the Citizen United case. Kagan didn’t even get through the first statement before being harshly challenged by 2 sitting Justices.

    This strongly indicates that her views are not exactly mainstream.

    NavyspyII (df615d)

  17. Fighting Kagan is important because:

    (a) she’s a far Left socialist (read her writings)
    (b) she’s extremely biased as an activist for the gay agenda (she’s gay but so what – she’s too biased to sit on a court).
    (c) display her views to the public regardless of how she answers
    (d) and, most importantly, force the Dems in the Senate to spend time on her nomination as well as forcing Obama to devote some of his campaign time to get her through the Senate.

    And, I’d even force the Democrats to take a filibuster vote and have another discussion of them using “nuclear” options. And, finally, even if no filibuster – note ONE GOP vote. Raise the chains of Bennett of Utah. Grounds for dismal by the voters.

    One must play the game. The Dems are now all Chicago politicians so “making nice”, ala Orin Hatch, is a suicide pact. You know, Orin could join that other soon-to-be ex-Senator from Utah.

    cedarhill (77b72d)

  18. You know who Kagan reminds me of a little?
    John Lovitz, from Saturday Night Live, in fact, I’m not certain She’s NOT John Lovitz, doing an Andy Kaufmann bit…

    Frank Drackman (6d27fd)

  19. I have been saying for days that Kagan is the best a moderately conservative guy like me could hope for because she stinks out loud as an advocate. Well, they are starting to agree: http://althouse.blogspot.com/2010/05/how-good-will-elena-kagan-be-at.html

    A.W. (e7d72e)

  20. From what I read, I agree with A.W. With a background in admin in higher ed, she would have to be more of an appeaser than an advocate to get this far. (I work in higher ed.)

    Yes, this is good. We want the weakest leftist O can nominate, not the strongest!

    Patricia (160852)

  21. “Lightweight” is the most charitable description I can find for her.

    SPQR (26be8b)

  22. It makes me wonder. Miers was done in as much by republicans who just felt she wasn’t good enough as by the dems.

    Is there any chance of that happening here? the dems realize she would be so weak in their cause they tell Obama “try again”?

    Just a thought. obviously safe odds is that she will be confirmed.

    A.W. (e7d72e)

  23. Have you seen the Beeler cartoon on the OpEd “pages” of the DC Examiner?
    Very on-point!

    AD - RtR/OS! (09aa03)

  24. It does seem that Dim Won is afraid to appoint anybody with more intellectual heft than his. We have a light weight nomination from a light weight President. Did you expect anything else?

    DavidL (e74857)

  25. Anyone strong in Photoshop and knows the Dick Tracy Comic strip? What I’d like to see is Kagan before the Sen. Judiciary Comtee, but her face being that of the Tracy villian, “The Blank”.

    PCD (1d8b6d)

  26. Maybe having someone that has never decided a case will be better compared to one (Stevens) that pretty much decided every case before he ever heard them.

    Icy Texan (5dc8a2)

  27. George W. Bush didn’t know John Roberts or Sam Alito. He relied on those to whom he’d delegated responsibility to ensure that they wouldn’t not be “another Souter,” but he had to feel intensely aware that his father had similarly relied upon those to whom he’d delegated selection and vetting responsibility for the assurance that Souter wouldn’t be … well, a Souter. Hindsight so far suggests that those upon whom Dubya relied for vetting Roberts and Alito did a much, much better job than those upon whom Poppy relied for vetting Souter.

    What most people never got about the Miers nomination was that from Dubya’s point of view, the best way he could avoid another Souter was to pick someone like Miers whom he personally knew and had worked with over many years of crises. His base wasn’t willing to trust his personal judgment, for reasons that I still do not understand. They insisted instead on trusting what they were told by the delegated pickers and vetters, and on trusting “elite” status (meaning they succumbed to a lot of regional and class-based bigotry) as a surrogate for something (I’m not exactly sure what — it certainly isn’t a good surrogate for either judicial restraint or political conservatism). They were happier, then, with a Sam Alito, who “everyone important” thought (from a distance) would be a reliable vote for decades, than with someone with whom Dubya had personal experience (from up close) upon which to base such a prediction.

    I do agree that there is a parallel between the Kagan nomination and the Miers nomination in that regard. Lefties right now are looking at things like Kagan’s supposed “moderate” politics as a Clinton Administration lawyer and they’re finding themselves uncomfortable relying on basically nothing more than Barack Obama’s opinion, based on his personal knowledge of and experience with Kagan (as a fellow faculty member at Chicago and as a member of his administration), that she’ll turn out to be reliably liberal and activist.

    Obama has, it’s true, given some of the hard Lefties reason to doubt his own judgment and convictions — his failure to strike down DADT being among the most conspicuous examples, along with positions Obama has decreed and Kagan has been obliged to support (regardless of her own views) in GWOT/national security policies that Obama has continued from the Bush-43 Administration.

    So yes, there’s some ironic humor here. Now it’s Obama instead of Dubya saying to his base, “C’mon, y’all, it’s me, you know I’m going to do the right thing on these judicial nominations, and I personally guarantee you ____ is going to be the kind of Justice you want.” Every time he tries to share a trusting wink, it runs the risk of being disastrously misinterpreted as a mocking one.

    Beldar (b6dfee)

  28. Bah.

    “He relied on those to whom he’d delegated responsibility to ensure that they wouldn’t not be ‘another Souter'”

    should be –>

    “He relied upon those to whom he’d delegated responsibility to ensure that there would not be ‘another Souter.'”

    Beldar (b6dfee)

  29. Beldar…
    I believe it was John Sununu who pushed Souter forward and vouched for him – not his only example of bad judgement in his job as CoS, but possibly his worst (along with making the deal on taxes with the House Dems).

    AD - RtR/OS! (09aa03)

  30. AD – RtR/OS!, you’re right, it was John H. Sununu (John E.’s dad), and the worst knock against Poppy was that he should have known that Sununu was not the right guy to ask to do this task.

    Sununu was a PhD in mechanical engineering, not a lawyer. I might do just as bad a job in vetting an engineer, but I hope I would have the integrity to object that I was unqualified if anyone asked me to vet an engineer.

    Sununu, in turn, was carrying water for N.H. Sen. Warren Rudman, who is indeed a lawyer, and who definitely should have known better. I’m not going to start slinging the “RINO” label around, but suffice it to say that these were the wrong sources to consult if one’s goal was to find a SCOTUS nominee who will consistently engage in judicial restraint or who would resist liberal attempts to achieve liberal political ends through court rulings that they couldn’t achieve through democratic processes.

    Beldar (b6dfee)

  31. Everyone likes to blame Sununu for Souter but H.W. was born and bred in the Northeast. I doubt he liked the fallout from conservatives over Souter’s legal positions, but I’m not convinced he or any of the Bushes are really social conservatives (except George W. on abortion) or that Souter’s opinions bother them that much.

    DRJ (d43dcd)

  32. DRJ, how do you square that theory with GHWB’s selection of Clarence Thomas? If one compares Thomas’ and Souters’ voting records, there’s no avoiding the conclusion that a president who intended to appoint one could also have intended to appoint someone like the other.

    I take your point about GHWB’s roots — and they’re not just a product of the northeast or Yale, they’re the product of being a Northeastern Republican senator’s son. I’ll grant at least for purposes of argument, and probably beyond, that Poppy’s personal commitment on a great many positions important to social conservatives was weak or entirely missing. I think he thought of himself as a proponent of competency and decency, without much distinctive ideological flavor of any sort. And I was personally present at a Bush rally in Austin during the 1980 Republican primaries when Poppy repeated his characterization of opponent Ronald Reagan’s economic plans as “voodoo economics.”

    But I also believe that GHWB was profoundly (and favorably) affected by Reagan and by the eight years he spent as Reagan’s Veep. To become Reagan’s rightful and regular heir, Poppy understood that he had to embrace Reaganism even though it wasn’t his nature to do so. I think he intended, when he picked Souter, to pick someone that would indeed satisfy the GOP/conservative base. He bungled it — responsibility is ultimately his. And I think he came to genuinely regret it, not necessarily because of a personal commitment to principles that Souter’s votes undercut, but because Poppy had let down his side (who had been promised, and expected, another Rehnquist or Scalia or Thomas).

    As for Dubya: I think those who try to explain everything Bush-43 did as being a reaction to his father’s one-term presidency generally overstate their case. But I do genuinely believe that “avoiding another Souter” was indeed the most fervent priority Dubya had when it came to judicial selections. George W. Bush was also famously contemptuous of the leakers and back-biters from his father’s administration, and he put a much higher premium on demonstrated personal loyalty from his entire staff than his father had. As a non-lawyer himself, there was zero chance that Dubya was going to personally study anyone’s law review articles or circuit court opinions. He sought, and got, good advice from competent advisers on the Roberts nomination, but I don’t believe it ever occurred to him that his own side would so vehemently distrust — indeed, would not only reject, but characterize as “cronyism” and even corruption! — his intense personal confidence in Miers. And when the crapstorm hit, the White House did a pathetic job of defending her — the worst job of informing or shaping public opinion during the eight years Dubya was in office.

    Beldar (444f76)

  33. Blearg! (#&@#$&@@&^#$!@ … should have been “there’s no avoiding the conclusion that a president who intended to appoint one could NOT also have intended to appoint someone like the other.”

    Beldar (444f76)

  34. “This strongly indicates that her views are not exactly mainstream.”

    Her job was to support the law. Be wary of taking a lawyer’s views from the arguements they make for their clients.

    imdw (46c091)


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