Memo to media: Kagan is no Harriet Miers


Various media figures have likened Supreme Court nominee Elena Kagan to Harriet Miers, President Bush's failed nominee. However, legal experts -- including conservatives -- have rejected the comparison. Moreover, media conservatives previously smeared Sonia Sotomayor as "Obama's Harriet Miers."

Media figures embrace comparison of Kagan to Harriet Miers

RedState: "Will this be President Obama's Harriet Miers Moment?" In a blog post, RedState's Brian Darling wrote: "The March 2009 debate is a preview to the public debate that will be going on over the next few weeks from coast to coast. Kagan was hit hard on her actions in banning the military from recruiting on campus at Harvard Law. She was also critiqued for not having the necessary experience for the Obama Solicitor General position. These issues will be front and center in this debate. Will this be President Obama's Harriet Miers Moment?"

Fox News airs Copland's baseless Kagan-Miers comparison. In a May 7 report on Fox News' Special Report (accessed via Nexis), Fox News chief White House correspondent Major Garrett said Kagan has a "thin legal paper trail" and aired a clip of the Manhattan Institute's James Copland saying: "This is a potential nomination that's closer to Harriet Miers than it is to Sam Alito. We're closer to Harriet Miers in the sense that there's not a lot of written track record here."

Big Government post on Kagan invokes Miers.
The conservative blog stated: "Today, President Obama is expected to announce the nomination of Harriet Myers [sic] Elena Kagan to the U.S. Supreme Court. The only interesting question is how big of a supporting role the media chooses to play." From the post:

Big government screen grab

Campos: "The Next Harriet Miers?" In a Daily Beast column prior to reports of Kagan's nomination, University of Colorado law professor Paul Campos wrote that "somebody needs to ask a rather impolitic question: How, precisely, is Kagan's prospective nomination different from George W. Bush's ill-fated attempt to put Harriet Miers on the nation's highest court?" Campos said that "[o]n its face, the question seems absurd," but went on to argue that Kagan is similar to Miers because Kagan has "published very little academic scholarship," and her "scholarship provides no clues regarding how she would rule on such crucial contemporary issues as the scope of the president's power in wartime, the legality of torture, or the ability of Congress to rein in campaign spending by corporations."

Legal experts -- including conservatives -- reject comparison to Miers

Conservative blog Point of Law: Claims "that Kagan is a Democratic version of Harriet Miers don't seem reasonable." In a May 10 post, the conservative legal blog Point of Law rejected the comparisons as unreasonable, stating: "It's fair to say that Kagan's academic record isn't especially distinguished, but there's much more there there than there was with Miers. Kagan has held government positions where real legal thinking was required and a much better resume than Miers."

Cohen: "Kagan is no Miers" and is "better compared with" Chief Justice Roberts. In a May 9 Politics Daily column, legal analyst Andrew Cohen wrote:

If indeed she is confirmed by the Senate following summertime hearings before its Judiciary Committee, Kagan will replace Justice John Paul Stevens. The oldest member of the Court will gave way to its youngest. She will not dramatically change the Court's ideological makeup -- if anything she would start her tenure sounding more conservative in certain areas than the man she replaces. But she will change its face and perhaps as well its tone for decades to come. The daughter of a school teacher even has a decent personal narrative which plays well. First female dean of Harvard Law School. First female solicitor general. Even in a "You go, girl" world Kagan has gone far first. And she once called judicial confirmation hearings a "vapid and hollow charade," which ought to earn her points for candor if nothing else.

Despite this background, or perhaps because of it, Kagan will continue to be compared by some conservatives to Harriet Miers, the former White House counsel for President George W. Bush who became a failed Court nominee after just a few weeks. But Kagan is no Miers, who failed to get the job in part because she was notably unimpressive about constitutional law during her private round of meetings with senators. Kagan is perhaps better compared with the man with whom she would likely serve out the rest of her career; Chief Justice John G. Roberts Jr., who was at least as conservative when he was confirmed as Kagan's liberal supporters hope she turns out to be down the road.

Aron: "She couldn't be farther from Harriet Miers." On the May 7 broadcast of Fox News' Special Report (accessed via Nexis), Garrett also aired a clip of Nan Aron, president of the Alliance for Justice, saying, "She couldn't be farther from Harriet Miers in my view. She has stellar academic and professional qualifications."

Goldstein: "An analogy to Harriet Miers is inapt." On SCOTUSblog, Supreme Court expert Tom Goldstein argued that "an analogy to Harriet Miers is inapt because Miers immediately generated broad hostility among movement conservatives, which won't be paralleled on the left here. The bottom line remains, moreover, that there simply is no reason to believe that anything will emerge that will significantly disrupt (much less derail) the nomination of Kagan, who has lived a fairly public life and been subject to extensive scrutiny."

University of PA law professor: Kagan is "like Justice John Roberts" in that "she's universally respected but hasn't written on divisive topics." On April 9, The Huffington Post reported that University of Pennsylvania law professor Theodore Ruger stated that "Kagan is unique in that, like Justice John Roberts, she's universally respected but hasn't written on divisive topics that could make confirmation difficult."

Numerous Supreme Court Justices had little or no judicial experience prior to joining the Court

Two of the past four chief justices did not have prior judicial experience. William Rehnquist and Earl Warren -- two of the past four chief justices -- had never been judges before their appointments as justices. Both were nominated by Republican presidents.

Former Chief Justice John Marshall and former associate Justices Louis Brandeis and Felix Frankfurter had no prior judicial experience. Former Chief Justice John Marshall, frequently referred to as the "great chief justice," and former associate Justices Louis Brandeis and Felix Frankfurter also had no judicial experience at the time of their Supreme Court appointments.

Kagan has not had judicial experience because GOP blocked her nomination. Kagan was nominated to the U.S. Court of Appeals for the District of Columbia Circuit in 1999 by President Clinton, and the Senate, then controlled by Republicans, blocked her nomination.

Clarence Thomas had been a judge for only 16 months when he was nominated for a Supreme Court position. Thomas had only been a judge for 16 months when George H.W. Bush nominated him for the Supreme Court.

Citing Frankfurter, GOP Sen. Hatch stated, "I have long believed that prior judicial experience is not a prerequisite for successful judicial service." On March 19, 2009, during the floor debate on Kagan's nomination to be solicitor general, Republican Sen. Orrin Hatch (UT) stated:

I have long believed that prior judicial experience is not a prerequisite for successful judicial service. Justice Felix Frankfurter taught at Harvard Law School from 1921 until President Franklin D. Roosevelt appointed him to the Supreme Court in 1939. During that time, by the way, he turned down the opportunity to become Solicitor General. But Justice Frankfurter famously wrote in 1957 that the correlation between prior judicial experience and fitness for the Supreme Court is, as he put it, "precisely zero.''

Indeed, 40 of 111 Supreme Court justices had no prior judicial experience. From

Name of Justice

Prior Occupations

Years On Court

Appointed By President:

1. William Rehnquist

Asst. U.S. Attorney General


Nixon (Assoc., 1972),
Reagan (Chief, 1986)

2. Lewis Powell

President of the American Bar Ass'n,
Private Practice



3. Abe Fortas

Private Practice



4. Byron White

Deputy U.S. Attorney General



5. Arthur Goldberg

U.S. Secretary of Labor



6. Earl Warren

Governor of California



7. Tom Clark

U.S. Attorney General



8. Harold Burton

U.S. Senator



9. Robert Jackson

U.S. Attorney General


F. Roosevelt

10. James Francis Byrnes

U.S. Senator


F. Roosevelt

11. William O. Douglas

Chairman of the S.E.C.


F. Roosevelt

12. Felix Frankfurter

Asst. U.S. Attorney, Asst. Secretary of War,
Prof. of Law at Harvard


F. Roosevelt

13. Stanley Forman Reed

U.S. Solicitor General


F. Roosevelt

14. Owen Josephus Roberts

Special Counsel in "Teapot Dome" investigation and trials



15. Harlan Fiske Stone

U.S. Attorney General


Coolidge (Assoc., 1925),
F. Roosevelt (Chief, 1941)

16. Pierce Butler

County Attorney, Private Practice



17. George Sutherland

U.S. Senator



18. Louis Brandeis

Private Practice



19. James Clark McReynolds

U.S. Attorney General



20. Charles Evans Hughes

Governor of New York,
U.S. Secretary of State


Taft (Assoc., 1910),
Hoover (Chief, 1930)

21. William Henry Moody

U.S. Attorney General


T. Roosevelt

22. George Shiras, Jr

Private Practice



23. Melville Fuller

Private Practice



24. Lucius Quintus Cincinnatus Lamar

U.S. Secretary of the Interior, U.S. Senator



25. Joseph Philo Bradley

Private Practice



26. Salmon P. Chase

U.S. Treasury Secretary



27. Samuel Freeman Miller

Private Practice



28. Noah Haynes Swayne

U.S. Attorney for Ohio, Ohio Legislator



29. Nathan Clifford

Maine & U.S. Attorney General



30. John Archibald Campbell

Alabama Legislator



31. Benjamin Robbins Curtis

Massachusetts Legislator



32. John McKinley

U.S. Senator


Van Buren

33. Roger Brooke Taney

Maryland & U.S. Attorney General,
U.S. Treasury Secretary



34. Henry Baldwin

U.S. Congressman



35. Joseph Story

Speaker of Mass. House of Reps., U.S. Congressman



36. John Marshall

U.S. Secretary of State



37. Bushrod Washington

Virginia House of Delegates,
Reporter for Virginia Court of Appeals



38. William Paterson

Governor of New Jersey



39. John Jay

President of the Continental Congress,
U.S. Secretary of Foreign Affairs



40. John Rutledge

Governor of South Carolina

1789-1791, 1795


Conservative groups immediately embraced Roberts despite the lack of public information on his views on controversial issues

As Media Matters for America has noted, The Washington Post reported on July 23, 2005: "Although little may be known about Roberts's specific views, conservative groups have embraced him as one of their own" (from Nexis). Additionally, a July 21, 2005, New York Times article reported:

In recent years, Judge Roberts has left little in the way of a paper trail on the abortion issue, in legal writings or public speeches, which heightens the focus on his work as a deputy solicitor general. Abortion rights groups are trying to highlight those years, suggesting that President Bush has found an appealing ''stealth'' nominee with a hidden agenda.

''They want to pass it off that he was just a lawyer, a mouthpiece,'' said Eleanor Smeal, the president of Feminist Majority. ''But he was more than that.''

Nancy Keenan, president of Naral Pro-Choice America, added: ''There's a record of clear legal activism. They trusted him to write the briefs.''

A measure of that trust, some Democratic and liberal strategists said, was the striking approval of the Roberts nomination by social conservatives and abortion opponents, in contrast to their reaction to the potential nomination of Attorney General Alberto R. Gonzales.


Leading social conservatives said they were pleased with the selection. Dr. James Dobson, the founder of Focus on the Family, told reporters, ''I don't think there is any evidence that he is going to be another Souter,'' alluding to Justice David H. Souter, a Republican appointee whose rulings have disappointed conservatives.

An e-mail message to supporters of the Christian conservative group American Family Association offered reassurance that Judge Roberts's deference to Roe as established precedent during his appellate confirmation hearing should not be held against him.

Conservatives previously smeared Sotomayor as "Obama's Harriet Miers"

Levey: Sotomayor is like Harriet Miers because she is an "intellectual lightweight" who was "picked because she was a woman." As Think Progress noted, Curt Levey, executive director of the right-wing Committee for Justice, compared Justice Sonia Sotomayor to Harriet Miers:

I would point you to the Harriet Miers nomination under the second President Bush. She was also many people felt and intellectual lightweight, picked because she was a woman, people felt. And even though Republicans controlled the senate, she ultimately had to withdraw. And that could happen here. This is someone who clearly was picked because she's a woman and Hispanic, not because she was the best qualified. I could certainly see red and purple state Democrats gawking at it and she may very well have to withdraw her nomination.

Ponnuru called Sotomayor "Obama's Harriet Miers." As Think Progress also noted, National Review Online's Ramesh Ponnuru's "quick take" on Sotomayor's nomination was that she was "Obama's Harriet Miers."

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