White House Contrasts Kagan's Resume With Rehnquist's

Administration officials are pushing back at criticism that Supreme Court nominee Elena Kagan lacks the requisite judicial experience to serve on the highest bench -- comparing her record to that of conservative stalwart William Rehnquist.

Asked about the line of attack on Tuesday morning, Vice President Joseph Biden replied that Kagan's judicial resume (or lack thereof) was "not a deal break, thank God."

"You have Justice Rehnquist, he never was a judge, he didn't do trial work," Biden added. "You had Justice [Robert] Jackson, Justice [Thurgood] Marshall, Justice Hugo Black. Thank God there are people other than just circuit court of appeals judges. I think it is a great asset she has."

From a historical perspective, of course, Biden is right to point out that it wasn't until recently that prior court experience mattered so much for a Supreme Court nominee. As the progressive Media Matters has pointed out, 40 of the nation's111 Supreme Court Justices never had judicial experience prior to their confirmation

Biden's reference to Rehnquist's resume is also a fairly valid political contrast -- one that Democrats have pushed privately. The former Chief Justice and Nixon appointee would be considered something of a novice by the standards some are applying to Kagan. Just glance at their respective post-law school careers:

KAGAN:
1986-87: Clerk for Judge Abner Mikva, U.S. Court of Appeals, D.C. Circuit
1987-88: Clerk for Justice Thurgood Marshall, U.S. Supreme Court
1989-91: Associate in Private Practice, Williams & Connolly
1991-97: Assistant Professor and Professor, University of Chicago Law School (1991-94 as assistant professor)
1995-96: Associate White House Counsel
1997-99: Deputy Assistant to the President, Domestic Policy Council
1999-01: Visiting Professor, Harvard Law School
2001-03: Professor, Harvard Law School
2003-09: Dean of Harvard Law School
2009-10: Solicitor General of the United States

REHNQUIST:
1952-1953: Clerk For Justice Robert Jackson
1953-1969: Private Practice in Phoenix, AZ
1969-1971: Assistant USAG, Office of Legal Counsel

That Rehnquist hadn't served in a political setting as opposed to a judgeship prior to his nomination was, at the time, considered an uncontroversial career path. Indeed, the recent trend of Judges being appointed to the Supreme Court was driven, in part, by the unwillingness of presidents to roll the dice with a more partisan appointee.

Asked, for an article last month, why so many appellate judges had been elevated to the bench, Professor David Yalof of the University of Connecticut (who has written extensively on Supreme Court politics) replied: "I think it becomes a safer play for other reasons. These people come pre-approved as judges. In cases they have been confirmed by the Senate. In the case of [John] Roberts, [Clarence] Thomas and [David] Souter, they had been confirmed by the U.S senate for a federal judiciary position within the previous two years."

Comments

[Over50WhiteWoman]

02:39 AM on 05/12/2010

When Clarence Thomas was appointed, I thought, but he only has 1.5 years judicial experience. Now, however, I know much more about how the SC functions. I still don't like Thomas, but his lack of judicial experience is not the reason. I rarely agree with his positions, but he does seem to have turned out to be a careful and precise thinker. The number of cases tried should not be the measure we use. We need people there who have deep knowledge of the Law. Then they need a very sharp and precise mind, coupled with a strong moral compass, and lots of exposure to different elements of our culture. Sadly, though Kagan meets the first 3 of my qualifications, I don't believe she probably has had a lot of exposure to ordinary, work-a-day folks. Does she really know how it feels to lose a job because you're a woman? Maybe. Does she understand racial discrimination? Somewhat, probably. Financial worries? Probably not.

Obama's choice of her is the more interesting because she lost the case she argued for the Administration--the Citizens United case that Obama criticized in the State of the Union. She failed to persuade them then, yet he still thinks putting her in there with them as an equal will help turn the court? That makes no sense to me.

[Intelligentia]

11:45 PM on 05/11/2010

The President got a four-in-on: Woman, Gay, Jew and White. So, once Justice Ginsburg (sp?) steps down, soon, we will have Holder up there or a Black woman. That way, nobody will complain. That's how I see this nomination.

[Intelligentia]

11:42 PM on 05/11/2010

Based on the qualifications of current and previous Supreme Court Justices, she is more than qualified. However, I categorically cannot in good conscience agree that someone who leaves law school and heads to a clerkship, then academia, then politically appointed positions, has proven herself or himself. All these positions are excellent on paper, but I will take someone who has really tried cases any day. So, for me, Rhenquist's "1953-1969: Private Practice in Phoenix, AZ" trumps everything else. The reason I do not give too much credence to appellate courts clerkships is because these clerks are merely cutting and pasting and verifying citations the trial attorneys cited in their briefs. So, the clerks are not really doing any real research or lawyering. Nothing against the nominee, but, that's how I see clerkship experiences. You also have to consider that these clerks a wet behind the ears, in that most of them never drafted any real legal document to any court before clerkship.

[autish]

09:05 PM on 05/11/2010

The court is now already conservative. Scalia, Thomas, Roberts and Alito are unashamedly conservative. Kennedy would have been considered conservative in any era except this. Don't believe me, just look at the court's recent decisions.

Having a more liberal member in Stevens hasn't made much of a dent. Having an even more liberal person, a liberal Scalia or Thomas, would probably only polarize the court. Remember, the conservatives already have the votes, so a more polarizing court would just result in more 5-4 decisions against the liberals.

So, while I understand that a firebrand liberal who writes eloquently in favor of the progressive bloc would be heartening, it won't change how cases are decided.

We need a split in the conservative bloc. We need to get the conservatives to start appreciating the liberal point of view. In this context, Obama's gamble is that they will be more willing to listen to someone who isn't a flaming liberal. His gamble is that Kagan is someone who can build a bridge and get the conservatives to respect the liberal view.

The worst we get with Kagan is a centrist who doesn't change the dynamic - i.e. we get a few cases go 6-3 (but that won't change the decision). The best case is we get a more moderate court as some of the conservatives start moving left. We'll have to wait until the retirement of one of the conservative members to get a real change in the rightward lean.

[rain33]

07:50 PM on 05/11/2010

oh ok white house, y'all have to do a better job with her resume. just because she worked with several prominent folks, we still need to know bout her legal views!

[Ergon]

07:27 PM on 05/11/2010

Not only has she published a paltry total of NINE articles in the 16 years she was at Chicago and Harvard Law Schools (two of which were book reviews) She wrote in 1993 "Regulation of Hate Speech and Pornography" "“We live in a society marred by racial and gender inequality. Certain forms of speech perpetuate and promote this inequality. The disappearance of such speech would be cause for great elation.”
"although the Supreme Court will not in the foreseeable future adopt the view that all governmental efforts to regulate such speech accord with the Constitution, a new majority could rule that all government efforts to regulate such speech would be constitutional.”

[ghee99]

06:35 PM on 05/11/2010

nothing against her personally....

but once again a harvard grad (obama)
looking out and promoting one of his own to power

how much longer are we going to accept harvard and yale grads holding a virtual monopoly on power through their exclusionary tactics

[citizen1787]

07:19 PM on 05/11/2010

agreed and fanned.

What is wrong with a law school other than Yale or Harvard?

[Knowitall]

07:20 PM on 05/11/2010

How long? Probably from now on. So you're probably going to have to live with it, or get a Harvard or Yale degree because that's where a great many of our top politicians and Presidents have come from. Just a fact.

[ghee99]

09:15 PM on 05/11/2010

no thanks

going to harvard or yale is like buying a gucci luggage

its the one the fancy types like, its very expensive, and conveys (to shallow people) status

but its not the best

it good, but still mainly for show

i am more interested in quality than just the "status" conveyed by a name.

[MaximMaximus]

06:26 PM on 05/11/2010

So Rehnquist's Resumee is minimal as compared to Elena Kagan's. It's ridiculous the suggest that Elena Kagan's not qualified. Her background represents excellence and a diverse experience in legal matters

[Ergon]

07:52 PM on 05/11/2010

Whenever someone uses the term "excellence and a diverse experience" then I know someone's padding their resume and their actual experience is kinda, sparse.
And since most of her experience is in academia, I'll ask, how many books and articles has she published? Because that's the guideline for evaluating academic skills.
Otherwise, she's just a glorified law student, and I fail to see how why she got pushed up the ladder.

[MaximMaximus]

08:34 PM on 05/11/2010

Just look at her Resume....it's out there. She's also worked in the WH. And has served as Solicitor General. In academia she's been engaged in teaching and administrative matters. An extensive list of publications is not necessary. Her experience is nothing but sparse. In fact, her experience covers a wide range. I am inclined to think she's got a very good understanding over a broad range of legal matters. And I suppose nobody questions her aptitude.

[Miguel C Saavadera]

06:26 PM on 05/11/2010

She has the same resume as Harriet Miers ... Ms Myers didn't make the cut, however Ms Kagan will because it is political (a Obama clone with a similar view and history ~ smart, but no hard traceable history), not what is in the best interest of the Nation..

[Knowitall]

07:31 PM on 05/11/2010

Actually Kagan does NOT have the same resume as Harriet Miers. Miers got her bachelors and law degree from Southern Methodist University. Not bad, but hardly the same with respect to prestige, when you consider all the justices who have degrees from Harvard, Yale and Stanford.
Plus Miers resume was extremely thin when compared to Kagan's.
The problem with your statement is that the premise on which you base it just isn't true.

Also, I'm sure you remember that it was NOT the Democrats who savaged Ms. Miers, it was conservative Republicans who went ballistic when Bush chose her. Conservative commentators went berserk. The Democrats just sat back and watched. Surely you remember that????

[talkitreal]

06:20 PM on 05/11/2010

Kagan wins the experience contest against Rehnquist - PERIOD!

[GonzotheRational]

06:19 PM on 05/11/2010

Boy these "women" judges are smart, but also kinda ugly!

[JakeAZ]

06:26 PM on 05/11/2010

Change yer name to Gonzothe Irrational. WHO CARES about her looks? I don't wanna date her, I want her to rule intelligently and fairly on personal freedoms/rights issues.

[bernbart]

06:06 PM on 05/11/2010

Lessig certainly presented a more compelling argument than Glenn. It is clear that Glenn is not very good,or out of practice in presenting legal arguments. Glenn is very myopic and every blog he writes he ties to one issue..Bush/ Cheney, torture and rendition, with the argument that Obama is just like Bush. I still maintain Glenn Greenwald is NOT really a liberal but either Libertarian, or a right leaning provocateur pretending to be liberal, constantly leading a campaign against Obama. Glenn has a small group of loyal followers who attack anyone who disagree with Glenn and appear to never think beyond what Glenn feeds them.

[LLeGrande]

06:00 PM on 05/11/2010

Why this administration would even compare the resume of a janitor at the SCOTUS to a true Rethuglican justice, William Rehnquist I will never understand.

Who was this amply rewarded functionary of the criminal president, Richard Nixon? He was one of many slime bags in that administration.

It was known that Mr. Rehnquist, before coming to Washington, and as a conservative Republican operative did in Arizona(?) what was done in 2008 in Jacksonville Florida - discourage certain voters from casting votes. He was, on that basis, unsuitable for high office.

That did not discourage the criminal elements of the Nixon Administration from installing him high up in the DOJ. And, if I recall correctly, after the Saturday Night Massacre, in which multiple high officials resigned rather than obey the criminal Nixon, they resigned.

Who did the dirty work? Yup - it was Rehnquist.

So Rehnquist got rewarded to the SCOTUS, and he performed admirably for the Republican Party to the end - the 2000 election in which the SCOTUS picked Jerry Falwell's evangelical boy for POTUS.

I rejoiced as much with William Rehnquist's demise as I did Jerry Falwell. Although, I was regretful that Mr. Falwell missed his main goal, the rapture.

[Hugh-Gee]

06:54 PM on 05/11/2010

With all due disrespect to Rehnquist, you don't recall correctly; he didn't participate in the Saturday Night Massacre. He was appointed to the Supreme Court in 1972; the Saturday Night Massacre took place in '73.
The one who did Nixon's dirty work in firing Cox and Richardson was Robert Bork.
It's not necessarily fair to blame Bork for that action, in IMHO. The blame resides with Nixon.

[Tiffany Munger]

05:43 PM on 05/11/2010

If Kagan's a novice, Rehnquist had training wheels and a binky.

[Huffingbrownbag]

05:40 PM on 05/11/2010

Kagan's academic credentials are considered a strong point. Let's make another comparison of Kagan's resume with other potential picks:

Blank Slate
There’s a lot we don’t know about Elena Kagan—because she’s never told us
Paul Campos May 8, 2010
http://www.tnr.com/article/politics/blank-slate

Kagan has published very little: three scholarly articles, two shorter essays, two brief book reviews, and two other minor pieces. Compare this record to those of the three other law professors most commonly mentioned as potential replacements for Justice John Paul Stevens: Stanford Law professor Pamela Karlan and Harold Koh, who became Yale Law's dean in 2004, each have more than 100, and Kagan's Harvard colleague Cass Sunstein, who also works for the Obama administration, has several hundred, including more than 20 books. All three have taken stands on numerous legal and political issues, in both the academic and the popular press. All have written extensively on how, in their view, courts should engage in legal interpretation in general and constitutional interpretation in particular.

[citizen1787]

06:03 PM on 05/11/2010

This pick seems to be driven out of a fear of the next Supreme nomination getting "borked" than out of a desire to find a unique and qualified legal scholar. Not to say that Ms. Kagan isn't, it is simply hard to say with so little to go on.

[Knowitall]

08:10 PM on 05/11/2010

It doesn't matter whether Kagan has published twice or 1,000 times, her record will be scrubbed thoroughly to find any inartful turn of phrase so that it can be cited over and over and over again to prove she's not worthy of the bench. (Already we're hearing about the exclusion of military recruiters from the Harvard campus.) Examples: "They cling to God and their guns" or "For the first time I'm proud of my country" or "A wise Latino woman....." or even "It's a high tech lynching" In this sound bite culture, these mostly innocuos phrases get 1,000's of gallons of ink, and in the end, make very little difference.