Is Elena Kagan Another Harriet Miers?

After President Obama nominated Solicitor General Elena Kagan for the Supreme Court, critics immediately labeled her another “Harriet Miers.” Is Obama’s choice that inexperienced?

When President George W. Bush nominated White House Counsel Harriet Miers in 2005 to the Supreme Court, Democrats pounced upon her thin resume. Conservatives groaned, wondering why Bush would pick someone with so little judicial experience over some very well-qualified nominees (and reliable conservatives) like J. Michael Luttig. Even her interviews with GOP Senators tanked. Miers stepped aside early in the confirmation process, and Bush nominated Judge Samuel Alito, who was confirmed to the post.

Solicitor General Kagan has argued cases before the Supreme Court for the past two years. She had served the Clinton administration as associate White House counsel, deputy assistant to the president for domestic policy, and as deputy director of the Domestic Policy Council. But she has never been a judge. Texas Sen. John Cornyn told Fox News, “Americans believe that prior judicial experience is a necessary credential for a Supreme Court Justice.” By the way, can you name the last Supreme Court Justice who had not served as a judge beforehand? The answer is at the end of this column.

The pivotal moment came when the American Bar Association released their analysis of Kagan’s qualification for the Supreme Court. The panel rated her “well-qualified,” probably on the basis of her current job and her academic experience as Dean of the Harvard Law School.

Now I know what you are thinking – a bunch of lawyers would do anything to help a Democratic Party nominee, right? All three Supreme Court nominees (Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor) had unanimous “well-qualified” ratings from the ABA. Wouldn’t it be helpful to see how they evaluated Miers and Republican nominees?

The ABA doesn’t have a perfect record. They made a colossal blunder when some on their board gave Judge Robert Bork a “not qualified” rating. Given his four years as solicitor general and years of hearing cases as a circuit judge for the U.S. Court of Appeals for the District of Columbia, their votes were clearly unfounded. Of course, these four were in the minority, and the bulk of the ABA panel made the correct call of “well-qualified.” But the move gave cover to liberal Republicans like Arlen Specter of Pennsylvania and conservative Democrats like Lloyd Bentsen of Texas to cast votes against Bork, torpedoing his Supreme Court nomination.

As for the other Republican picks, Clarence Thomas had two “not qualified” votes but 12 for qualified. Sandra Day O’Connor won well-qualified and qualified scores, according to a USA Today analysis. GOP nominees John Paul Stevens, Antonin Scalia, Anthony Kennedy, John Roberts, and Samuel Alito received unanimous “well-qualified” ratings (according to the USA Today), showing bipartisanship for the ABA. Miers and Douglas Ginsburg withdrew before getting an ABA rating.

“The ABA ratings do not take into account whether a judge’s judicial philosophy and views are in or out of the broad mainstream,” a Senator once said. “That is the $64,000 question.” That statement, by New York Democrat Charles Schumer during Alito’s hearing (as quoted by USA Today), will now be the likely tactic of the GOP during the hearings and confirmation vote.

As for that last Supreme Court Justice not to have prior judicial experience, the answer is former Chief Justice William Rehnquist, who had been a Supreme Court law clerk and assistant attorney general for the Office of Legal Counsel in the Nixon administration.