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Gibbs: 'I Have A Hard Time Understanding' The Kagan-Miers Analogy

First Posted: 05/10/10 04:48 PM ET Updated: 05/25/11 05:25 PM ET

Kagan

The Obama administration is working to put an early end to the notion that the president's nominee for the Supreme Court, Elena Kagan, resembles in any way the early flameout Bush appointee, Harriet Miers.

"I have a hard time understanding the analogy," said White House spokesman Robert Gibbs, during Monday's briefing. "I would have you look at the full background of her record. Again, a clerkship for [former US Appellate Court judge] Ab Mikva, a clerkship for Thurgood Marshall, teaching at the University of Chicago, work at the counsel's office here, work at the Domestic Policy Council here, nominated for a federal judgeship which might have happened were it not for a filibuster on her votes, and the notion that she received a strong bipartisan vote for being the Solicitor General..."

Republican critics of Kagan pushed the Miers analogy heavily in the hours after she was first announced as a replacement for retired Justice John Paul Stevens. Brian Darling, writing on RedState.com, asked whether Kagan would be "President Obama's Harriet Miers Moment?" Conservative legal analyst Ed Whelan, writing at the National Review, asked much the same question days before Kagan was even announced.

Bill Wilson, of Americans for Limited Government, drew the analogy quickly after the announcement was made:

"Elena Kagan is an unknown quantity with nothing in her record to recommend her to the highest court in the land. She's never been a judge, and devoid of any examples, Senators will be hard-pressed to determine exactly what her judicial philosophy is," Wilson said. "President Bush's nomination of Harriet Miers was withdrawn for the same exact reason, and rightly so."

And while Sen. John Cornyn, (R-Tex) didn't allude directly to Miers, his emphasis on Kagan's lack of "prior judicial experience" was contrasted immediately to the positive reviews he had given to Bush's second choice for the Court just five years prior.

[O]ne reason I felt so strongly about Harriet Miers's qualifications is I thought she would fill some very important gaps in the Supreme Court. Because right now you have people who've been federal judges, circuit judges most of their lives, or academicians. And what you see is a lack of grounding in reality and common sense that I think would be very beneficial.

The comparisons, of course, are rather unfounded. Miers was attacked by conservatives for being an unknown quantity. But among Democrats that was not the primary concern. That distinction was owed to her proximity to the president, for whom she served as counsel and actually had led the search for a Supreme Court pick (before Bush decided to choose her instead). The overarching fear was that Miers would simply be a lackey for the Bush administration's policies once confirmed. No one has yet to make a compelling case that Kagan is indebted to President Obama to the extent that she would carry out his agenda on the court. Indeed, her career path has paralleled -- if not, at times, exceeded -- Obama's, rather than been dependent on his.

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