Kagan vs. Miers: A saga of two would-be Supremes

With a seat on the Supreme Court all but assured for Elena Kagan, it is instructive to compare her nomination with that of Harriet Miers five years ago. Under any unbiased reading, there are obviously two sets of standards for consideration of associate justice candidates. In addition, the hearings are little more than well reheased performances that offer nothing in the way of insight into a nominee's judicial philosophy. This travesty has rendered meaningless the ritual of Senate confirmation hearings.

While Kagan's nomination sails through the Senate with tacit GOP support, Miers was forced to withdraw after those within Bush's own party bowed to Beltway media pressure. While Democrats will defend their own to the bitter end, Republicans have a sorry history of cutting bait at the first sign of negative press. It is why the GOP has remained a minority party for most of its history.

Harken back to the hearings for Miers in 2005. Critics on both sides of the aisle pointed out that she had never served as a judge, had close ties to the President and lacked a clear record on issues likely to be considered by the high court. Those exact same things are also true of Elena Kagan. But the Democrats stood their ground.

The media and Democrats have championed Kagan as a thoughtful, open-minded, imminently qualified nominee, with a sterling legal resume. An objective examination of her record belies that characterization. Here are just a few examples of her documented views:

1. In a 1996 White House document penned by Kagan, she compared the National Rifle Association to the Ku Klux Klan. She said both were "bad guy" organizations.

2. In an article in the University of Chicago Law Review, Kagan argued that government has the right to restrict free speech. She claimed that free speech could be "harmful" and as a result could be restricted.

3. In 2003, Kagan sent an email calling the military's "Don't Ask, Don't Tell" policy a "moral injustice of the first order." What makes this even more instructive is that Kagan served as President Clinton's Associate White House Counsel when the administration promulgated the very policy she said she "abhorred."

Of course, during her hearings Kagan tiptoed all around these and other issues. The same person who called previous nomination hearings "a vapid and hollow charade" displayed by her answers that she can obfuscate with the best. Apparently, being vapid and hollow is perfectly acceptable if you're the one being cross-examined by Senators.

Her carefully scripted answers to Senators' questions brought back memories of Justice Sonia Sotomayor's performance in the same venue. In a repartee with senators, she declared that the Second Amendment right to bear arms was "settled law," yet in the first court test of her tenure the associate justice voted with the minority in opposing that very precedent. It's further evidence the hearings are meaningless.

A side-by-side comparison of the careers of Kagan and Miers shows more similarities than differences. Both clerked with judges after law school. Kagan managed the law school at Harvard. Miers managed a large law firm in Dallas. Yet Miers was criticized for having managerial and not judicial experience. The same was not said of Kagan.

Kagan has close personal ties to Obama, including serving as his Solicitor General. She and the President have mutual ties to Harvard. Miers served as White House Deputy Chief of Staff and White House Counsel under President Bush. They both had ties to Texas. No question both judicial nominees would have to plead guilty to being close to their bosses. Apparently, the distinction of being "too" close depends on who is President. Miers' sin was once praising Bush's personal qualities.

Both smashed legal glass ceilings. Kagan was the first female to be named Dean of the Law School at Harvard. Miers was the first female president of the Dallas Bar Association. Both were active in the law schools at their respective universities.

In another coincidence, both suffered failed judicial nominations. Kagan was nominated by President Clinton to the federal appeals court. Her nomination lapsed after the Senate failed to schedule hearings because of tepid support. Of course, Miers withdrew her Supreme Court candidacy to save Bush from suffering a defeat on her nomination.

Democrats like to point out that Kagan actually argued cases before the Supreme Court, something Miers never did. However, that experience came during the past 12 months when she argued six cases before the Supremes. That hardly qualifies as a decisive edge when comparing the two nominees.

However, Miers can one-up Kagan on one count that President Obama has deemed important for Supreme Court nominees. Obama has declared on more than one occasion that "life experiences" are a valued judicial criteria. Miers served a two-year term on the Dallas City Council and chaired the Texas Lottery Commission. Kagan's life experiences have been limited to the sheltered existence within tight academic and legal circles.

But all this appears to be of little consequence to Democrats. They have raised their voices in unison to praise Kagan's nomination. The media has joined the chorus in glorifying Kagan's brilliance, failing to point out her obvious shortcomings. Compare that to what happened to Miers. She was savaged in the media, even called intellectually lacking, a curious charge given her long list of achievements. Interestingly, no women's group protested an accomplished women being deemed too stupid to serve on the court.

Even more disappointing is the reaction of Republicans. After expressing some initial misgivings after the nomination was announced, GOP Senators have acquiesced. They have signaled their support, despite Kagan's thin resume. Their brethren on the other side of the aisle showed no such willingness to compromise when Bush nominated Miers. They mounted a successful campaign to destroy Miers.

It is sad to watch. But that is what happens when the media and Republicans fail to do their jobs, allowing Democrats to run roughshod over the judicial nomination process. As a result, Elena Kagan will surely become the first Supreme Court associate justice in four decades without prior judicial experience. The last was William Rehnquist in 1972.

There are no winners in this tale of two nominees. The losers are the American people who deserve a fair and balanced examination of any high court nominee, regardless of who occupies the White House. Changes should be made to end this sham foisted on an unwary public. Surely, there can be no opposition when a lifetime appointment to the Supreme Court is at stake.