Folks on the left, starting I think with Paul Campos, have taken to comparing the nomination of Elena Kagan to that of Harriet Miers.
There is some merit to the comparison. Neither has been a judge and thus there is no trail of opinions from which one can infer the nominee’s approach to judging or her theory of the Constitution.
Miers practiced law in Texas, while Kagan practiced academics and academic politics in Chicago and Cambridge. But both spent time in Washington advising the president.
Miers never got a vote in the Senate. Thus, there is no precedent as to whether a resume of her kind passes muster. But some on the left see a useful precedent in the attacks on the Miers nomination by many conservatives, attacks that caused Miers to withdraw. As Jane Hamsher expresses it:
Like Harriet Miers, [Kagan] doesn’t have a record to tell us how she would adjudicate from the bench. [Conservatives] led a rebellion against the executive branch and the same thing should happen here. . . .Nobody knows what [Kagan] stands for but [Obama]. It’s just a cult of personality with Obama. This is the Supreme Court.
I think Hamsher pushes the Miers comparison too far. Miers was a crony of President Bush, but Kagan isn’t a crony of Obama; nor, to my knowledge, is she a close confidante. Plenty of people probably know as much or more about where Kagan stands than Obama does — her friends at Harvard Law School and perhaps her colleagues in the Solicitor General’s office, for example. If Kagan was less than a reliable liberal, word almost certainly would have gotten out during the vetting process or before.
In Miers’ case, there was a smaller window of opportunity for her substantive views to become known. She spent most of her professional career as a practicing attorney, outside the world in which jurisprudential and constitutional theories are routinely discussed (but, as noted below, there turned out to be an important window into Miers’ views, nonetheless). And much of her time in Washington was spent in staff type positions — first as Staff Secretary and then as Deputy Chief of Staff for Policy.
In sum, conservatives needed to rely more heavily on President Bush to vouch for Miers’ soundness than liberals need to rely on President Obama to vouch for Kagan’s. Moreover, Obama is himself a lawyer, whereas Bush is not. Thus, his assessment of ideological soundness is worth more than Bush’s was.
Finally, and perhaps most importantly, conservatives were able to find evidence that Miers had not consistently been a conservative in the past. It turned out that her speeches during the 1990s revealed significant centrist, and even liberal, tendencies. It was only when these speeches came to light that the tide turned decisively against Miers.
If someone unearths comparable departures from orthodoxy by Kagan, her nomination may suffer the same fate as Miers’. Short of that, she’s unlikely to face serious opposition from the serious left.