Media forward bogus attack that Kagan is too political

Written by Sarah Pavlus & Adam Shah

Published

Media figures are uncritically reporting the bogus conservative talking point that Supreme Court nominee Elena Kagan is “too political” because she served in the Clinton administration. In fact, all but one chief justice held political positions before joining the Supreme Court, as did many associate justices.

Media promote GOP claim that Kagan is “too political”

Cable personalities promote GOP claim that Kagan is “too political.” On June 28, CNN's Kyra Phillips stated, “Elena Kagan will face some tough questions. Some Republicans say she was too political when she worked in the Clinton administration.” On the same day, Fox News' Carl Cameron said of Kagan: “There are questions about her lifetime in partisan politics.”

All but one chief justice held political positions before their Supreme Court appointments

Chief Justice Roberts spent years in Republican administrations and was involved in GOP campaign activity. During the Reagan administration, John Roberts was a special assistant to U.S. Attorney General William French Smith from 1981-82. He then served as an associate White House counsel from 1982-86. After the election of George H.W. Bush, Roberts returned to government as the principal deputy solicitor general. According to his Senate Judiciary questionnaire for his Supreme Court nomination, Roberts was a member of the “Executive Committee, D.C. Lawyers for Bush-Quayle '88” and “Lawyers for Bush-Cheney” in 2000 and “assist[ed] those working on behalf of George W. Bush on various aspects of the recount litigation.” According to a July 20, 2005, Associated Press report, Roberts “has contributed more than $3,700 to Republican candidates, including $1,000 to George W. Bush's [2000 presidential bid].”

Former Chief Justice Rehnquist was a Goldwater aide and assistant attorney general for Nixon. William Rehnquist served as a legal adviser for Barry Goldwater's 1964 presidential campaign. Later, he served as an assistant attorney general during the Nixon administration.

All but one chief justice held political positions. According to the biographies of the chief justices from the Federal Judiciary Center's database, 16 of the 17 chief justices had experience in political or elective office before being appointed to the Supreme Court. (The lone exception is Warren Burger.) The list of chief justices includes one president, William Howard Taft; another who ran for president, Charles Evans Hughes; three governors, Hughes, Salmon Chase, and Earl Warren; members of the U.S. House of Representatives and Senate; and people who served in the executive branch.

Scalia, Thomas, Alito, and O'Connor also held political positions

Recent conservative associate justices also held political positions before their Supreme Court appointments.

  • Justice Antonin Scalia served as assistant attorney general in the Ford administration from 1974-77.
  • Justice Clarence Thomas served as a legislative assistant to then-Sen. John Danforth (R-MO), assistant secretary of education for civil rights in the Reagan administration, and the chairman of the Equal Employment Opportunity Commission -- also in the Reagan administration.
  • Justice Samuel Alito served as deputy assistant attorney general in the Reagan administration and served as U.S. Attorney for the District of New Jersey under Presidents Reagan and George H.W. Bush.
  • Justice Sandra Day O'Connor served as an Arizona state senator, serving as senate majority leader for part of that time.

In job application, Alito highlighted his personal views and said he was “particularly proud” of his efforts to overturn constitutional protections for abortion. In a 1985 job application for a position in the Reagan administration's Justice Department, Alito said, “I am and always have been a conservative and an adherent to the same philosophical views that I believe are central to this Administration.” He also said that he “strongly” and “personally” believed in the legal argument that the Constitution did not protect abortion:

Most recently, it has been an honor and a source of personal satisfaction for me to serve in the office of the Solicitor General during President Reagan's administration and to help to advance legal positions in which I personally believe very strongly. I am particularly proud of my contributions in recent cases in which the government has argued in the Supreme Court that racial and ethnic quotas should not be allowed and that the Constitution does not protect the right to an abortion.