Is Elena Kagan The Next Harriet Miers?

TheDailyBeast.com:

Top Supreme Court contender Elena Kagan, is an able administrator with a shamefully thin record of legal scholarship. Paul Campos compares her to the hapless Bush nominee who got laughed out of town. 

 

As the rumblings become louder that President Obama is going to choose U.S. Solicitor General Elena Kagan as our next Supreme Court justice, 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?

On its face, the question seems absurd. Five years ago, Miers was derided as a careerist mediocrity whose primary qualification to be on the Supreme Court was a slavish devotion to President Bush. Kagan, by contrast is a purportedly "brilliant" legal scholar who was granted tenure at the University of Chicago and Harvard, before becoming dean of the latter's law school.

Kagan's work reminded me of Orwell's observation that, if book reviewers were honest, 19 of 20 reviews would consist of the sentence, "this book inspires in me no thoughts whatever."

Yesterday, I read everything Elena Kagan has ever published. It didn't take long: in the nearly 20 years since Kagan became a law professor, she's published very little academic scholarship—three law review articles, along with a couple of shorter essays and two brief book reviews. Somehow, Kagan got tenure at Chicago in 1995 on the basis of a single article in The Supreme Court Review—a scholarly journal edited by Chicago's own faculty—and a short essay in the school's law review. She then worked in the Clinton administration for several years before joining Harvard as a visiting professor of law in 1999. While there she published two articles, but since receiving tenure from Harvard in 2001 (and becoming dean of the law school in 2003) she has published nothing. (While it's true law school deans often do little scholarly writing during their terms, Kagan is remarkable both for how little she did in the dozen years prior to becoming Harvard's dean, and for never having written anything intended for a more general audience, either before or after taking that position.)

Kagan's handful of publications touch on topics like regulating offensive speech, analyzing legislative motivations for speech regulations, and evaluating the process of administrative law-making. But on the vast majority of issues before the Court, Kagan has no stated opinion. 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.

I know that their are going to be Obama stans out there who'd support Barry if he picked Santa Claus for SCOTUS, but the fact that Kagan has never been a judge, to me, should alarm those on the Left and the Right.

Harriet Miers supports Affirmative Action

So says this article from the Washington Post:

As president of the State Bar of Texas, Harriet Miers wrote that "our legal community must reflect our population as a whole," and under her leadership the organization embraced racial and gender set-asides and set numerical targets to achieve that goal.The S upreme Court nominee's words and actions from the early 1990s, when she held key leadership positions as president-elect and president of the state bar, provide the first window into her personal views on affirmative action, an area in which the Supreme Court is closely divided and where Miers could tip the court's balance.....To some conservatives, the types of policies pursued by the Texas bar association amount to reverse discrimination. ...

Miers, the first female president of the Texas bar, vowed in her first interview with the Texas Law Journal as president to "be inclusive of women and minorities." During her tenure, she championed the cause of increasing the number of female and minority lawyers in the bar's own leadership ranks and in law firms across the state, writing that "we are strongest capitalizing on the benefits of our diversity. "Miers was a believer in mentoring programs, but during her tenure she and the board of directors went further, passing a resolution urging Texas law firms to set a goal of hiring one qualified minority lawyer for every 10 new associates. The directors also reiterated support for a policy of setting aside a specific number of seats on the board for women and minorities..."Those are quotas," said Roger Clegg, the general counsel for the Center for Equal Opportunity, a conservative group opposed to affirmative action. The fact that Miers "did not create the quota systems but only perpetuated and endorsed it doesn't make it less disturbing," he said...

This should help Miers get more support from Democratic senators during her upcoming confirmation proceedings, but it'll obviously get right-wing conservatives already blasting the Miers pick even more riled at her.

What gets me most upset when I read about anyone who opposes affirmative action is that they always seem to dismiss 2 things in their reasonings: 1) how it benefits white women more than anyone else and 2) how it hasn't done anything to usurp advantages created by a white privilged society. Plus, critics continue to act like Blacks have made these huge gains via affrimative action, when that is so far from the truth as poverty, a lack of education, family dysfunction and crime continue to plague the Black community.

Affirmative action isn't "reverse discrimination", it promotes diversity and it makes sure that the same rules apply to everyone regardless of race or gender. The fact that white men still hold 95% of the managerial positions in this country (despite being only 43% of the population), further shows that AA is needed.

I'll be in full support of affirmative action as long as racism exists. The fact that she supports it as well makes me further know that I made the right choice in supporting Harriet Miers in the first place.

UPDATE: for purposes of N.Z. Bear's tracking:

I support the Miers nomination.

You're Just A Blip On My Screen

To all the Harriet Miers critics, including the depressed, the skeptical and the downright angry, the President has a message for you:

From Reuters -

President George W. Bush, hit by a series of domestic woes that have eroded his popularity, said on Thursday he was focused on his job and not on what he called "some background noise." Bush was asked how preoccupied the White House was by distractions that include an investigation into whether any of his top aides deliberately outed a CIA operative, a conservative revolt over his nomination of Harriet Miers as a Supreme Court justice and investigations into senior Republican leaders in Congress.

Bush told reporters he was concentrating on his work.

"There's some background noise here, a lot of chatter, a lot of speculation and opining. But the American people expect me to do my job, and I'm going to," Bush said in the White House Rose Garden, after talks with Palestinian President Mahmoud Abbas.

The president has been hit by falling job approval ratings in public opinions polls in recent months. "Part of my job is to work with others to fashion a world that'll be peaceful for future generations. And I've got a job to do to make sure this economy continues to grow," Bush said.

Couldn't have said it any better myself.

Thomas Got In; So Should Miers

A date has finally been set to begin the Harriet Miers confirmation proceedings.

But trouble is still a brewing.

Arlen Specter, a liberal Republican, referring to Harriet Miers, is quoted as saying that, "It is unfair to start the hearings before she's ready." Liberal senator Chuck Schumer says that Miers needs "some time to learn" about key constitutional cases. Why? Because Schumer didn't like the answers he got to cases he presented to Miers when he got meet her one-on-one the other day.

Chuck Schumer is a funny guy.

You see what makes Chuck so comical is that, amongst other things, here's what the Senator WON'T talk about: when it comes to George W. Bush making Supreme Court picks, the Senator's mind has long been made up. And it's a resounding "NO!". Chuck Schumer (who despite going on record expressing great admiration for John Roberts' judicial skills, yet still turned down his nomination) wouldn't vote "yes" to a Supreme Court nominee unless they absolutely hated the idea of prayer in schools, literally had an abortion and would go on record as having attended a gay wedding. Therein lies the Senator's litmus test. And last time I checked, that's illegal.

At least Specter has the excuse of being old, tired and literally sick. But who needs him anyway? Miers doesn't.

If Conservative Republicans would put their selfish pride aside and I don't know . . . TRUST the guy in charge, they'd see that a Miers confirmation is a step forward for the conservative movement. Conservatives wanted an obvious judicial conservative for their nominee. They didn't want to be asked, as they were with Judge Roberts, to support a nominee based on faith. They wanted another Robert Bork, a judge whose paper trail clearly identified him as a constitutionalist, yet he got rejected anyway.

We're supposed to learn from our mistakes, not repeat them.

So President Bush gave them Harriet Miers. She has never been a judge. Her paper trail is even thinner than Roberts'. Her judicial tendencies can be inferred, but they can't be proved. But what does that matter? Miers, has MORE experience at law than Clarence Thomas did before he got elected, so all the talk of "lack of experience" is really insignificant chatter covering for petty jealousy. Also, she has clearly shown where she stands on issues at the heart of conservatives. Sure, she hasn't said much so far in public, but legal speak says that she doesn't have to.

Like Roberts before her, Miers just needs to excel at the game of "getting in", and what that essentially means is that she has to learn the art of not saying much, without saying nothing. Convince at least 45 Republicans and 10 Democrats that she knows what she's talking about, get in tune with past major cases that shaped U.S. law, know the ins and outs of the Constitution and she's our next Associate Justice.

Then, she can make life easy for herself by just being like Thomas. Do like Thomas does in public: smile and say nothing. And, like Thomas does with Antonin Scalia, she can just lean over and copy another justices' notes. And, just like Thomas, in 10 years Conservatives will have the same adoration for Harriet as they do now for Thomas. And they'll throw her plenty of accolades. And call her "brilliant". Just like Thomas.

Can it be that it's all so simple?

For Miers sake and the President's, it'd better be.

Harriet Miers Is The Right Choice

Sometimes conservatives can be just as stupid and reactionary as liberals. Harriett Miers' name has barely registered as the next possible Supreme Court and already she's being castigated. I don't understand why so many conservatives aren't in favor of Harriet Miers as the next Supreme Court judge. Then again, many of them weren't big fans of John Roberts either so I shouldn't be too surprised. But what gives? With Republicans owning a Senate majority, conservatives seem to believe that President Bush should be nominating strictly right-wing, anti-abortion, anti-affirmative action candidates. Yet, in doing so conservatives underestimate the threat of a Democratic filibuster and maybe they forget that the President's own dad picked a man he thought was a surefire conservative, David Souter, and well you know what happened there.

Despite being concerned about his position on affirmative action, I supported John Roberts and from what little I know about Miers I support her as well. Why? Because both Roberts and Miers seem to be interested in doing one thing: their JOB in withholding the integrity of the law and nothing more. And isn't that what conservatives should mostly be concerned about? Aren't conservatives the ones who bark the most about judges legislating from the bench? Aren't conservatives the ones who paraded around in glee when the wishy-washy Sandra Day O'Connor announced her retirement?

President Bush had promised again and again that he would only select those who would be "strict interpreters of the Constitution"--were conservatives not paying attention? Bush already endured enough of a headache getting the likes of Janice Rogers Brown and Priscilla Owens confirmed to new positions, why when his poll numbers consistently down and all the unwarranted flak he's gotten from his handling of Hurricane Katrina, should he risk a prolonged fight with Democrats salivating to embarrass him?

Bottom line, Miers has the experience necessary for the job. And for all the critics crying about "cronyism", tell me how many people in this country hasn't gotten at least one job in their life because of someone they knew? I trust the the Miers' pick because Bush KNOWS her, he's worked with her, she helped him immensely in selecting Roberts, she's proven to be loyal to the President and her record on abortion is pretty clear if you can put aside your angst and do the resaerch. Then too, Miers will be confirmed because she has 3 favorable things going for her: 1) her gender, which will make it hard for even the most hardcore femiNazi to discredit her; 2) her lack of judicial experience (mind you 35 previous justices also had no experience as judges before they got elected to the highest court in the land) which leaves her without a paper trial for liberal Democrats like Charles Schumer to pounce on and 3) the fact that 2 weeks before Bush announced Miers as his nominee, D-NV Harry Reid, a major Bush nemesis, suggested to Bush personally that he pick Miers. For all the criticism regarding his pick, the feelings here are that Bush made an ingenious selection in making sure that 20 years from now, Harriet Miers will still be making conservatives proud.