Skip to content
Link copied to clipboard

Howler of the day

The Republicans who lament Elena Kagan's lack of judicial experience were the cause of it

The best way to beat the heat is to laugh it off. And nobody supplies comic relief better than the Senate Republicans. Their Senate Judiciary Committee members provided some priceless belly laughs yesterday, as they played to their base and went through the motions of attacking Supreme Court nominee Elena Kagan on day one of her confirmation hearings.

It's tough to name the day's biggest howler. Maybe it was Alabaman Jeff Sessions' thrilling expose of a senior thesis that Kagan wrote wayyyy back when she was a student at Princeton, a thesis that (in Sessions' breathless view) "seems to bemoan socialism's demise." Or maybe it was Arizonian John Kyl's lament about how Kagan supposedly embodies the supposedly evil values of "Manhattan's upper West Side" - a place that, at least in Kyl's assessment, is apparently far less American than anywhere in Arizona.

Or maybe it was the way various Republicans seized on Kagan's youthful stint as a clerk to the late Justice Thurgood Marshall, in order to slime Thurgood Marshall as an out-of-the-mainstream liberal. (Brilliant move, white guys! Attacking the civil rights icon who successfully argued Brown v. Board of Education, maligning the lawyer who later became the first African-American to serve on the high court, and whose name now adorns the federal judiciary building located just a few blocks from the Senate hearing room...Maybe this tone-deaf display by the white people's party qualified as the howler of the day.)

But these episodes aside, one theme surfaced repeatedly yesterday. Republicans kept complaining that Kagan was ill-qualified for the high court because she had no judicial experience. For instance, Sessions said, "She has never been a judge...there is no substitute for being in the harness of the law, handling real cases over a period of years." At another point, John Cornyn listed her advisory work in the Clinton White House - "quite a different job than that which she will assume should she be confirmed." At another point, Orrin Hatch groused that past Supreme Court justices "have had experience behind the bench as a judge," whereas Kagan has had no such experience.

Let's not dwell on the fact that these Republicans seem so ill-informed about American history. Among other examples, William H. Rehnquist had no judicial experience when he was tapped by Ronald Reagan for the high court. Earl Warren had never been a judge when he was tapped by Dwight Eisenhower for the chief justice job. FDR appointees Hugo Black and James Byrnes had no prior judicial experience. And the first great chief justice, John Marshall, whose court has shaped American jurisprudence for more than two centuries, and who fundamentally elevated the judicial branch to equal status with the other two federal branches of government - he had no prior experience as a judge, either.

Let's dwell instead on the heart of the matter: The reason why Kagan has no previous judicial experience is because the Senate Republicans who now complain about her lack of judicial experience are the very people who thwarted her efforts to gain such experience. Orrin Hatch complains that she has never been a judge - but in 1999, when Kagan was tapped to fill a vacant seat on the federal court of appeals, it was Orrin Hatch, as chairman of the Judiciary Committee, who blocked her nomination in the first place.

As the '99 news coverage makes clear, Kagan was nominated that June by President Clinton for a seat on the federal appeals court based in the District of Columbia. She never made it to the Senate floor for a vote. Actually, it was worse than that. She never made it to the Judiciary Committee for a committee vote. Actually, it was worse than that. She never got a chance to testify, because Hatch wouldn't even agree to schedule a hearing. The appeals court seat remained vacant until 2003 - when John Roberts was confirmed to fill it.

Why did the Senate Republicans deny Kagan the chance to gain judicial experience? Why did they let her twist in limbo in 1999 and 2000? Ostensibly, the GOP was concerned about some advice that Kagan may or may not have given to Clinton officials, with respect to a controversial environmental dispute in Oregon; in response, Kagan wrote in a memo, "simple fairness requires giving me the opportunity to clear my name in a hearing." She never got the chance because she never got a hearing.

Actually, the environmental dispute was merely the GOP's excuse for blocking her confirmation. The real reason was spelled out in the '99 news coverage: At the time, the District of Columbia appeals court had 11 judges and one vacancy; there were six GOP appointees and five Democratic appointees. If the Senate Republicans had cleared the way for Kagan's confirmation, they would have lost their 6-5 majority on that crucially important court.

Yet now we have the current Senate Republicans complaining about Kagan's lack of judicial experience. On second thought, maybe that was the howler of the day.