JUDICIAL CRISIS NETWORK MEMORANDUM: ELENA KAGAN: INEXPERIENCED RUBBER STAMP
President Obama should not be surprised that Kagan’s lack of relevant experience is generating controversy. She is one of the most inexperienced Supreme Court nominees in memory, and critics of all political persuasions are right to question President Obama’s motives for nominating such a blank slate.
Kagan’s lack of relevant experience is so glaring that it led liberal law professor Paul Campos to compare her to Harriet Miers
, the Bush nominee who was attacked by Republicans for her inexperience and inscrutability and by Democrats for being too close to the President. According to the chart below, compiled using data available at the Federal Judicial Center, that comparison might not be far off the mark. Neither Miers nor Kagan had been a judge before being nominated. While Miers and Kagan had spent nearly the same amount of time in government, Miers had been a practicing lawyer for more than a quarter-century longer than Kagan. The only significant experience advantage Kagan had over Miers was in academia. But, as we have explained
, her bibliography is thinner than any other tenured Harvard Law professor — and many of the untenured professors as well.
Why nominate someone so inexperienced, especially when it was obvious that it would cause concern among some of the liberal supporters he would need? Because a stealth nominee is the only way President Obama can minimize the political damage he and his party could suffer from a full-throated discussion of his judicial philosophy: one that would substitute empathy for impartial legal reasoning and rubber stamp his big government political agenda that the American public has overwhelmingly rejected. As White House aides told the New York Times
, President Obama wants to further extend the reach of government, and views the Court as an obstacle to his far-reaching plans.
The idea that Obama intentionally sought a politically experienced stealth nominee is all the more credible in light of the aggressive support Kagan has received from other liberal Democrat insiders who have known her for many years. After the nomination, liberal leader and former Clinton insider John Podesta rushed to praise the nomination
, saying he had been “a friend and colleague of Elena Kagan for more than 20 years” and that he knew she would be “a much-needed progressive voice on [the] Court.” Similarly, Rahm Emanuel, who has been lobbying legislators on Kagan’s behalf, has known Kagan for many years and reportedly depended on her very heavily when they worked together in the Clinton White House.
President Obama may think he is getting away with it, but he is not. According to a poll released by JCN on April 26, a majority of Americans expected President Obama to nominate a Supreme Court justice who would “rubber stamp” his political agenda. Perhaps that explains why the most recent Rasmussen Reports poll
found that not even half of Americans support Kagan’s confirmation.
On behalf of the American public who has been kept in the dark, JCN has demanded that the Clinton Library expedite the process of releasing Elena Kagan’s documents from her service in the Clinton administration. The Senate and the public deserve access to all records, so they can have a meaningful opportunity to learn, for example, if and when staffer Kagan recommended that political expediency trump constitutional principles. Nominee Kagan’s Senate hearing would certainly benefit from that background information, as well as the open discussion of judicial and political philosophy Kagan herself has forcefully advocated for in the past.
Until full disclosure is made, and forthcoming hearing testimony given, the presumption remains that Obama has intentionally nominated a politically adept blank slate who will rubber stamp his agenda to expand government.