A meme is emerging that Elena Kagan is Obama’s Harriet Miers. A good example of this line of thinking is Monica Crowley‘s piece at Big Government, “Kagan: THIS Harriet Miers Will Get Confirmed.”
I was an early critic of the Miers pick (as was James). It was impossible to look at her resume and think that she was a good pick for the high court. To quote Charles Krauthammer at the time:
To nominate someone whose adult life reveals no record of even participation in debates about constitutional interpretation is an insult to the institution and to that vision of the institution.
There are 1,084,504 lawyers in the United States. What distinguishes Harriet Miers from any of them, other than her connection with the president?
The problem with Miers was, at its root, the fact that she had zero record of being intellectually engaged with the Constitution. Yes, she had been a very successful lawyer. That is not, however, the same thing as being a legal scholar. Say what one will about Kagan (and much, no doubt, will be said). However, one cannot get tenure at the University of Chicago’s Law School and a full professorship and deanship at Harvard if one has no record of intellectual engagement with the law. Further, being Solicitor General (although granted, for a relatively brief time) is a resume enhancement for someone going to the Court in a way that being a White House Counsel (as Miers was) is not.
The Miers comparisons are vested in the notion that the main criticism of Miers was her lack of judicial experience. However, while that was raised, it was raised in a broader context of her lack of experience in general of dealing with constitutional matters. Indeed, her lack of judicial experience was just one of her “lacks.”
Look, I am not saying the Kagan is the most gifted, most scholarly choice that Obama could have made. However, for reasons I detailed at least in part this morning, the most gifted legal scholars are not going to be nominated. First, they are likely too old and second (and more importantly) the only way we would really know if they were gifted legal scholars in the first place is if they had written a lot on the subject. Sadly, our politics have evolved to the point that such a person is considered ineligible for nomination. The worst thing a nominee can have is an extensive publication record on intellectually difficult topics. For example, can there be any doubt that someone like Lawrence Tribe isn’t more qualified than Kagan? However, one can readily imagine the rather heated (shall we say) response from the GOP to such a nomination.
I am sure that Kagan isn’t the person I would nominate were I the president. However, there really is no comparison to Miers.
