Their argument against Miers was her lack of legal experience, her lack of judicial temperament and that she simply was not qualified to be a justice on the highest court in the land. The complaints were hard and fast against the nominee and the president. The case was clearly made that, no matter how devoted, simply being a friend and political supporter of the president doesn’t mean you should have a lifelong appointment to the bench.
Elena Kagan’s own test for a qualified nominee makes this case even stronger. In a 1995 piece for the University of Chicago Law Review, Ms. Kagan addressed the topic of judicial nominations head-on: “It is an embarrassment that the President and Senate do not always insist, as a threshold requirement, that a nominee’s previous accomplishments evidence an ability not merely to handle but to master the ‘craft’ aspects of being a judge.” According to Kagan, a nominee must demonstrate that he or she “has the training, skills, and aptitude to do the work of a judge at the highest level” (University of Chicago Law Review, Vol. 62, No. 2, Spring 1995).
Even a cursory look at Kagan’s record shows she fails her own test and has neither the training, skills nor aptitude required for a Supreme Court justice.
This judicial amateur lacks the proper legal experience necessary for a position on the court. Kagan’s surge to the limelight stems largely from her political experience and presidential ties. Having served on President Clinton’s staff, she worked behind the scenes pursuing an aggressive policy agenda that included pushing for abortion rights, gun control and campaign finance reform. In the place of strong judicial experience (having never served as a judge), Kagan has spent much of her career as a political operative, earning her friendships with Presidents Clinton and Obama.
In addition, Ms. Kagan lacks the proper judicial temperament necessary for a Supreme Court justice. She has praised her “judicial hero,” Israel’s Chief Justice Aharon Barak, widely considered to be one of the most activist judges in the world. Justice Barak believes that the court should have the power to declare illegal “any government action that is ‘unreasonable’” and to “[J]udge the deployment of troops, even in wartime.”
Without her own judicial experience to draw from when weighing cases, Kagan will likely rule in line with her hero who has no qualms in going “beyond actually deciding the dispute” to “make law.” Chief Justice John Roberts, who leads the body of which she might become a member, has called her positions “startling and dangerous” and rightly warns against her activist tendencies.
The parallels between the nominations of Kagan and Miers — their similar legal background and connection to the presidents who nominated them — makes the various reactions from the right and the left stand in stark contrast. While Miers was harassed and criticized by both sides of the aisle until she withdrew her name from consideration, Kagan has faced relatively mild opposition, and this coming almost exclusively from the right.
Why the deferential treatment for the current nominee? It seems as though Kagan’s friends in the executive and legislative branches have no problem with her aforementioned disqualifications. Harriet Miers’s close connection to President Bush was unacceptable to many, but Elena Kagan’s connection to President Obama and her political ties to many left-wing causes is permissible, according to those who would like to give her activist tendencies new life with this increased power.
The fundamental question, posed eloquently by Sen. John Cornyn (R-Texas) while on the Senate floor, is “…whether Solicitor General Kagan can and will set aside her considerable skills as a political adviser to take on a very different job as a neutral judge. Will she apply the law fairly, regardless of the politics involved? Will Solicitor General Kagan appreciate the traditionally narrow role of a judge who must apply the law rather than the activist role of a judge who thinks it is proper to make up the law? Can she make the transition from political strategist to judge?”
Confirming Kagan for a lifelong tenure to the most powerful legal body is too great a risk to Americans who want their constitutional rights protected. The Supreme Court is no place for a political professional in need of on-the-job judicial training. Kagan fails her own experience test. Unfortunately, the standards of the left fail when they put political ideology over respect for the law and the Constitution.
America will suffer the consequences.