Democrats Should Vote Against Elena Kagan

by John Shu

Thirty-seven current Democrat U.S. Senators, along with former Senators Barack Obama and Joseph Biden, believed that Robert Bork, Clarence Thomas, John Roberts, or Samuel Alito were not sufficiently qualified to be on the Supreme Court. Using their own standards, Elena Kagan is also not sufficiently qualified and these 39 Democrats therefore should not support her nomination.

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Bork, Thomas, Roberts and Alito, at the time they were nominated for the Supreme Court, had significantly more experience, scholarship, and/or accomplishments than Kagan does now.

Bork served in the U.S. Marine Corps, in private practice for several years, as U.S. Solicitor General, as one of America’s most influential antitrust scholars, and as an U.S. circuit judge. Thomas served as Missouri’s Assistant Attorney General, in-house counsel for a major corporation, a U.S. Senate aide, Chairman of the Equal Employment Opportunity Commission, and a U.S. circuit judge. Roberts served as Special Assistant to the U.S. Attorney General, Associate White House Counsel, Principal Deputy Solicitor General, and head of the appellate practice at Hogan & Hartson (now Hogan Lovells), which was the oldest major law firm headquartered in Washington, D.C. and which now has some 2,500 attorneys worldwide. Roberts also argued dozens of Supreme Court cases and was an U.S. circuit judge prior to his Supreme Court nomination. Alito, among other things, argued a dozen Supreme Court cases as Assistant to the U.S. Solicitor General, was U.S. Attorney for the District of New Jersey, and was an U.S. circuit judge.

Kagan does not have this same level of accomplishment.

A Supreme Court nominee need not have prior judicial experience, but that nominee must have the necessary experience to be a justice. Kagan became Solicitor General about a year ago, and until then her actual litigation experience mainly consisted of doing dredge work like discovery and motion practice. In fact, she joined the Supreme Court bar only shortly before the Senate confirmed her as Solicitor General. Kagan’s inexperience showed when she argued – and subsequently lost – her first Supreme Court case, Citizens United v. Federal Election Commission, the same case which President Obama uses to claim the mantle of standing up for the little guy and to attack the Supreme Court. Kagan herself admits that during her Citizens United argument she did not know how to answer Justice Kennedy’s questions about Thornhill v. Alabama, 310 U.S. 88 (1940) and Coates v. Cincinnati, 402 U.S. 611 (1971) because she did not know them.

Thornhill and Coates are well-known First Amendment cases which Kagan should have learned in law school. Justice Kennedy wrote Citizen United’s majority opinion; perhaps the case would have turned out differently if President Obama had nominated a more qualified Solicitor General candidate.

Kagan and her supporters cite her experience as a professor and dean at Harvard Law School to try and overcome her general lack of qualifications. Knowledgeable liberal academics, however, correctly note that her scholarship is minimal in both quality and quantity. Liberal academics also note that during Kagan’s time as dean approximately 80% of her tenured or tenure-track faculty were white men. Kagan hired five white women, one Asian-American woman, and no blacks, Latinos, or Native Americans. Perhaps Kagan should explain to Justice Sotomayor why she did not hire a wise Latina to be a tenured Harvard Law professor?

Some liberals are afraid that Kagan’s lack of a substantive record means she would move the Court to the right. Ignore this red herring. Kagan grew up in Manhattan’s privileged, liberal Upper West Side and worked for liberal politicians like Liz Holtzman, Mike Dukakis, Bill Clinton, Joe Biden, and now Barack Obama. Kagan may be a stealth nominee, but she is not going to move the Court to the right.

The President of the United States may nominate anyone he likes to serve on the Supreme Court, and the Senate should confirm that nominee based on whether he or she is objectively qualified, respects the Constitution, and will not impose personal political or policy preferences from the bench. A White House spokesman recently declared that President Obama would nominate “someone who has a rigorous legal intellect, respects the limits of the judicial role and has a keen understanding of how the law impacts the daily lives of Americans.” It does not appear that Kagan has these qualities.

Let’s skip the old and useless confirmation arguments over issues like abortion. Instead, let’s examine Kagan, her record, and her qualifications under President Obama’s criteria and the criteria which Democrats used to examine Bork, Thomas, Roberts, and Alito. If President Obama, Vice-President Biden, and the 37 current Democrat U.S. Senators who voted against confirming Bork, Thomas, Roberts or Alito voted true to their beliefs, then they should also vote against confirming Elena Kagan or confess their hypocrisy.


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Posted May 24th 2010 at 10:07 am in Congress, Justice/Legal, Obama, Politics, Supreme Court | 95 Comments