Elena Kagan spent her first day on Capitol Hill today meeting the senators who will vote on her nomination. One of them, Republican leader Mitch McConnell, took to the Senate floor to raise questions about whether she will be a captive of the White House she works for.
"In our constitutional order, justices are not on anybody's team," said McConnell. "They have a very different role to play. As a Supreme Court justice, Ms. Kagan's job description would change dramatically. Far from being a member of the president's team, she'd suddenly be serving as a check on it. This is why the Founders were insistent that judges be independent arbiters, not advocates."
McConnell is almost certainly not going to vote for Kagan. But like those Republicans who might, he wants to know whether she has an independent judicial standard she will apply from the bench. Where does her thinking come from? Her head, her readings, her heart, or her former boss? This is not necessarily a crazy line of inquiry. It's something every nominee must weather.
But just as Kagan must prove that she has a standard that doesn't shift with the whims of her current boss, so, too, must the senators who sit in judgment of her show that they have a consistent standard. And if the senators don't want her standards driven by her employment, it's fair to ask whether their standards are driven by their party affiliation.
In this regard, there has already been coverage of how Republicans have changed the standard they applied to Harriet Miers, the last nominee who (like Kagan) was not a judge. McConnell didn't raise the issue of Miers' ties to then-President Bush when she was nominated, which might be considered garden-variety political shape-shifting. But it becomes something more of a whopper when one remembers how close Miers was to the man who nominated her.
Harriet Miers was not only the president's White House lawyer—a job closer to Bush's interests than Kagan's are to Obama's as solicitor general. Miers also had been Bush's personal lawyer since the mid-'90s. She was the lawyer for his gubernatorial campaign, and in 2000, Miers was Bush's presidential campaign lawyer. Plus, she was a close personal friend. "You are the best governor ever—deserving of great respect!" she wrote in one birthday card. She wasn't just on the Bush team. She was captain of the cheerleading squad.
None of the senators now raising these questions about Kagan made an issue of Miers' closeness to Bush and used it to argue that she could not be counted on to rule against the Bush administration. In fact, when the Bush administration was doing its sales job—identical to the work the Obama team is doing now—it often cited Bush's close personal relationship with Miers. Because of their relationship, the argument went, Bush knew Miers' "heart"—and that was supposed to be all one needed to know.
That wasn't a good enough standard, as many conservatives pointed out at the time. And if we want to be consistent about our standards, it's probably those conservatives we should listen to now, rather than the ones making this case out of convenience.