Will the President Apply Consistent Standards to His Own Supreme Court Nominee?

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With several news outlets reporting the growing uneasiness with President Obamas Supreme Court nominee, Elena Kagan, perhaps what worries lawmakers most is her lack of experience. In fact, she had no experience in the courtroom whatsoever until her appointment to the position of Solicitor General.

Equally concerning to them is the fact that Kagan has little to no paper trail from which they can discern her views regarding certain key issues such as abortion and same-sex marriage (though she has said plenty from our point of view) issues very likely to come before the Supreme Court. Even as a dean at Harvard Law School, she had only six articles published in the Harvard Law Review. This seems to give the illusion that she has no controversial opinions because she was smart enough (and ambitious enough?) to never write about them.This requires some to merely speculate what her positions are on these things.

One good thing about this is that this should compel senators on the Judiciary Committee to question Kagan rigorously during her hearings, which begins June 28.

Kagan supporters insistence that she should get an easy ride to confirmation just will not fly. In fact, when former President George W. Bush nominated Harriet Miers to the Supreme Court, many of the same Democrats who now support Kagans appointment urged caution when it came to Miers similar lack of paper trail. Their solution? A heightened scrutiny of the record and an intense line of questioning during confirmation hearings. This standard for a nominee with little to no opinions on paper may be completely warranted. However, the same standard had better be applied to Elena Kagan if these Senators want to avoid being labeled as hypocrites.

And, ironically, the biggest hypocrite of all will be President Obama, who, as Senator in 2005, said of Harriet Miers Supreme Court nomination:

Harriet Miers has had a distinguished career as a lawyer, but since her experience does not include serving as a judge, we have yet to know her views on many of the critical constitutional issues facing our country today. In the coming weeks, well need as much information and forthright testimony from Ms. Miers as possible so that the U.S. Senate can make an educated and informed decision on her nomination to the Supreme Court.

Based on that standard, the Senate Judiciary Committee should be prepared to ask pointed questions of Elena Kagan about her views on key issues and her judicial philosopohy. Her meager record of opinions does not give her a pass, but in fact warrants caution, just as Obama once inferred of Harriet Miers.

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