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Flashback: Obama raised concerns about Miers' lack of judicial experience

As you know, many on the left (this blog included) have argued that Elena Kagan's lack of experience on the bench is cause for concern, if only because it means we have to do a lot of guessing about her views and ideological leanings.

Turns out Barack Obama himself agrees with this. Or at least he did back when he was a senator and Harriet Miers was nominated by then-President Bush. According to several news sources in Nexis, Obama put out this statement in 2005:

Harriet Miers has had a distinguished career as a lawyer, but since her experience does not include serving as a judge, we have yet to know her views on many of the critical constitutional issues facing our country today. In the coming weeks, we'll need as much information and forthright testimony from Ms. Miers as possible so that the U.S. Senate can make an educated and informed decision on her nomination to the Supreme Court.

It's important to make a critical distinction here: Obama was not saying that lack of judicial experience is necessarily a disqualifying factor, as some Republicans are now hinting. He was merely saying that we needed to know more about Miers.

This time around, reasonable people could disagree about whether what we know about Kagan suggests an expansive a view of executive power or that she'd likely shift the court too far to the right. But as Obama's statement shows, those who have pointed out that her lack of judicial experience in and of itself should lead us to see Kagan as a potentially risky choice have some pretty good company: the big man himself.

We really do need to know more, and hopefully, that's where the hearings will come in.

UPDATE, 3:54 p.m.: To be clear, this isn't meant to draw an equivalence between the two nominees -- Kagan is obviously far more qualified in terms of legal experience and intellectual heft. We know a good deal more about her Constitutional views, since she's written about and taught them and argued before the Supreme Court itself. And by "risky" I meant in terms of whether she'd be a progressive voice.

The point is that -- as Obama said about Miers -- the lack of judicial experience should lead us to press the nominee even harder to fill in her views in detail, and to not be satisfied if she doesn't.

By Greg Sargent  |  May 12, 2010; 3:00 PM ET
Categories:  Supreme Court  
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Next: Next attack on Kagan: Partisan rubber stamp!


I predict a great silence from the lefty readers here ...

It's what I've been saying all along, Greg. She needs to be asked tough questions about this during the confirmation hearings. Kudos to you for pointing this out.

Posted by: sbj3 | May 12, 2010 3:17 PM | Report abuse

"I predict a great silence from the lefty readers here ... "

Why? As Greg pointed out, two different arguments are made in what he's highlighting.

Republicans argue that she lacks judicial experience to perform the job. Obama pointed out the lack of judicial experience makes it difficult to ascertain what her positions are.

But yea, she needs to be asked about everything. How she'd vote on past cases, etc.

Posted by: mikefromArlington | May 12, 2010 3:26 PM | Report abuse

I don't see anything in the statement precluding Kagan's appointment. In any case, these justices never served as judges before their Supreme Court appointments:

Louis Brandeis,
Earl Warren,
William O. Douglas,
Lewis Powell,
Abe Fortas,
Byron White,
Arthur Goldberg,
Hugo Black,
Tom Clark,
Harold Burton,
Robert Jackson,
James Francis Byrnes,
Felix Frankfurter,
Stanley Forman Reed,
Owen Josephus Roberts,
Harlan Fiske Stone,
Pierce Butler,
George Sutherland,
James Clark Mcreynolds,
Charles Evans Hughes,
William Henry Moody,
George Shiras,
Melville Fuller,
Lucius Quintus Cincinnatus Lamar,
Joseph Philo Bradley,
Salmon P. Chase,
Samuel Freeman Miller,
Noah Haynes Swayne,
Nathan Clifford,
John Archibald Campbell,
Benjamin Robbins Curtis,
John Mckinley,
Roger Brooke Taney,
Henry Baldwin,
Joseph Story,
John Marshall,
Bushrod Washington,
William Paterson,
John Jay,
John Rutledge

Posted by: Maezeppa | May 12, 2010 3:28 PM | Report abuse

Everything about a SCOTUS nominee's professional life should be explored. The lack of judicial experience is germane to the discussion, just as her experience as a law professor at two of the most prestigious law schools in the country (and dean at one of them) is. Bench experience neither qualifies or disqualifies Kagan, in and of itself. It wasn't Mier's lack of judicial experience that doomed her. Republicans thought she was both unqualified and (maybe) too moderate for their tastes. The similarities between Miers and Kagan ends after "They are both lawyers."

Posted by: srw3 | May 12, 2010 3:35 PM | Report abuse

Where is the CRITICISM (my emphasis)? He was complimentary and unnecessarily deferential to someone who was obvsiously woefully unqualified, but he was clearly willing to withhold judgment, stating only that further information was needed. At no time has the President or members of his staff suggested that Kagan should not have to withstand questioning on her views. So what's your point?

Posted by: NMP1 | May 12, 2010 3:40 PM | Report abuse

The reason that standard SHOULD have been applied to Miers is that she had slim qualifications to begin with.

Kagan's ONLY deficiency (if it is one) is not to have been a judge; so if they want to ask about that, fine, but it's not a priori a disqualification (as pointed out above by that long list of precursors).

Posted by: BGinCHI | May 12, 2010 3:41 PM | Report abuse

The GOP should Harriet Miers this chick, or dude, or chick, or whatever.

Posted by: hared | May 12, 2010 3:57 PM | Report abuse

Fair point re the use of the word "criticized." I changed it to "raised concerns."

Also see the update I added. I didn't mean to draw an equivalence. Was trying to make a different point.

Posted by: Greg Sargent | May 12, 2010 4:02 PM | Report abuse

"The point is that -- as Obama said about Miers -- the lack of judicial experience should lead us to press the nominee even harder to fill in her views in detail, and to not be satisfied if she doesn't."

Greg, is this some kind of pre-emptive shot? Please point out when Obama said that Kagan should not be questioned on her views.

Posted by: suekzoo1 | May 12, 2010 4:05 PM | Report abuse

"It's what I've been saying all along"

No it isn't. You've said that because the question of judicial experience polls well, the GOP should use this as a basis for attacking Kagan. It's one thing to say that judicial experience or the lack thereof is pertinent; it is quite another to gin up partisan attacks founded upon rank hypocrisy (i.e., the GOP only care about experience when it cares about experience). The GOP simply cannot tell the difference any longer.

Posted by: wbgonne | May 12, 2010 4:09 PM | Report abuse

sue -- I never said Obama said that. I was merely pointing out that he rightly flagged the lack of judicial experience as a reason (in Miers' case) to press harder to learn her actual views.

And that we should do the same now. That's the sum total of the point.

Posted by: Greg Sargent | May 12, 2010 4:15 PM | Report abuse

Hey Greg! - Taking some shots from the left now, eh? A gentle criticism? Your update smacks of caving to your readership. If you feel that the left, in general, has already decided to support Kagan regardless of the hearings, then you should just say so and stick by your guns.

Posted by: sbj3 | May 12, 2010 4:33 PM | Report abuse

sbj -- I don't necessarily believe that. The update was just meant to clarify that I didn't mean to draw a direct equivalence, which I didn't.

Posted by: Greg Sargent | May 12, 2010 4:35 PM | Report abuse

@Greg: Ha! I like that - "I don't necessarily believe that."

Necessarily - meaning perhaps you do believe that but aren't willing to take a ton of abuse from Liam?

I don't think you had any need to clarify - your readers are reflexively defensive. You don't need to cater to that.

Posted by: sbj3 | May 12, 2010 4:39 PM | Report abuse

That was a really lame attempt at spinning Greg's point. Note that he says "Obama was NOT saying that lack of judicial experience is necessarily a disqualifying factor, as some Republicans are now hinting. He was merely saying that we needed to know more about Miers." What part of "NOT" do you not understand?

To the extent that Obama WAS saying that judicial experience is a necessary prerequisite, he was WRONG. You imply that us lefties are willing to rubber stamp all that Obama does. Have you ever actually READ the Plumline? The leftiest of us are not shy about criticizing Obama if we think he has gotten something wrong.

Of course, about the only similarity between Harriet Miers and Elena Kagan is their lack of judicial experience. Pretty much everyone was underwhelmed by Miers résumé. See Jon Stewart's comparison between Miers and Kagan.

The whole "judicial experience" meme is indicative of the lack of actual criticism the right can muster regarding Kagan.

Still an epic GOP and sbj fail.

Posted by: Gasman1 | May 12, 2010 4:42 PM | Report abuse

Also note that you have aligned yourself with the homophobes on the right like one "hared" above. I still maintain that because the entire "judicial inexperience" argument is laughably inappropriate, it is nothing more than a surrogate attack on her sexuality. The GOP desperately wants to play the lesbian card, but they know they dare not be the ones to broach the subject. They are hoping that someone else will bring that issue into play.

Many of your compatriots on the right would be just as happy to have you run out of the country. With friends like those, I guess you really don't need any enemies, do you?

Posted by: Gasman1 | May 12, 2010 4:53 PM | Report abuse

All, never mind this. check out the GOP's next attack line on Kagan:

Posted by: Greg Sargent | May 12, 2010 5:12 PM | Report abuse

This blog posts two great qualifiers -- that Obama was NOT saying that Miers was instantly disqualified for not being a judge, and that the author admitted belatedly that yes, Kagan has more experience than Miers -- destroys any need for this blog post in the first place.

Obama never said what you wanted him to say.

Kagan is a serious candidate; far, far more serious that part-time state lottery counsel Harriet Miers.

And, to 'break the silence,' let this be said:

It just seems really silly, a rational person must admit, to suggest that a person qualified to be dean of the Harvard Law School could in any way be unqualified to be a justice of the Supreme Court of the United States.

Kagan, say what you will (and the post above proves that many will say what they will, regardless of facts or logic -- although our author gets somes points for bending toward intellectual honesty, if not getting their yet), is a person knowledgeable about the law who has progressed very near the top of her profession.

What more experience is required.

Certainly not being a judge didn't prevent Republicans from nominating and confirming William Rehnquist to the court.

Would conservatives expect to put more requirements on Kagan than they put on Rehnquist, and still expect to be taken seriously?

And, a question not yet asked:

How different is the job of being a Supreme Court justice's clerk from the job of being a Supreme Court justice?

Kagan was a justice's clerk -- giving her actual experience working inside the Supreme Court of the United States.

Where's The Plum Line blog post about that?

Posted by: 1EgoNemo | May 12, 2010 5:15 PM | Report abuse

"Kagan was a justice's clerk -- giving her actual experience working inside the Supreme Court of the United States."

Well then - Laura Ingraham for Supreme Court Justice!

Posted by: sbj3 | May 12, 2010 5:53 PM | Report abuse

What intellectual "heft?" Three published articles, a couple of reviews, and effusive logrolling by her pals are not evidence of intellectual heft.

She's more qualified than Miers. By a small margin. That's all.

Posted by: boxwell02 | May 12, 2010 6:05 PM | Report abuse

All, happy hour roundup posted:

Posted by: Greg Sargent | May 12, 2010 6:48 PM | Report abuse

Isn't the old adage:

Those who can't...teach.

Makes you wonder about Kagan if running two law schools is her basis for be a good nominee.

Posted by: dolamite | May 12, 2010 10:04 PM | Report abuse

Wasn't Jesus a teacher? That old adage has even less merit than you do.

"Lernin'? We don't need no stinkin' lernin'!"

Posted by: Gasman1 | May 13, 2010 12:33 AM | Report abuse

She's more qualified than Miers. By a small margin. That's all.

That is a good one. Clerking for Mikva Marshall, dean of arguably the most prestigious law school in the country. Earned full professor at another top notch law school. First female solicitor general. Argued cases before the SCOTUS. Exactly which of Miers jobs compares to this list of accomplishments? Lawyer for the state lottery commission? Shrub's personal lawyer? The only thing that comes close is White house counsel to shrub.

Get real.

Posted by: srw3 | May 13, 2010 2:21 AM | Report abuse

Kagan's thesis lamenting the decline of socialism in the U.S. shows her early love affair with radicalism and socialism.

Additionally, the fact that Obama has selected her for the Supreme Court, demonstrates that she must still share Obama's goal of forcing socialism/Marxism on us.

The fact that Kagan lacks a "paper trail" and is "agreeable" just makes it easier for Obama and his comrades to fool people into believing that she is not dangerous.

It's is obvious, however, that if Kagan is nominated, she would do her best to help Obama transform the U.S. from a prosperous, capitalist, FREE country into another failed, poor, socialist, ENSLAVED country.

Posted by: AntonioSosa | May 16, 2010 8:49 AM | Report abuse

While the sexual orientation of Ms.Kagan should not be a litmus test for an appointment to the highest court in the land, her honesty about this issue should be. The Administration has blasted news organizations for posting pictures of Ms.Kagan as a softball player, who most likely can throw a baseball much better than the President(judging by her batting stance). Would it be correct to infer that President Obama is gay, do to his lack of ability to throw a baseball? A bit too defensive on this subject, are they not?

Posted by: dahoss2x | May 17, 2010 9:26 AM | Report abuse

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