If Elena Kagan is too close to the president, what was Harriet Miers?

Who's winning, who's losing, and why.
May 12 2010 2:03 PM

Don't Stand So Close

If Elena Kagan is too close to the president, what was Harriet Miers?

Harriet Miers. Click image to expand.
Harriet Miers

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.

John Dickerson John Dickerson

John Dickerson is Slate's chief political correspondent and author of On Her Trail. Read his series on the presidency and on risk.

"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.

Become a fan of Slate  and  John Dickerson  on Facebook. Follow us on Twitter.

TODAY IN SLATE

Frame Game

Hard Knocks

I was hit by a teacher in an East Texas public school. It taught me nothing.

Chief Justice John Roberts Says $1,000 Can’t Buy Influence in Congress. Looks Like He’s Wrong.

After This Merger, One Company Could Control One-Third of the Planet's Beer Sales

Hidden Messages in Corporate Logos

If You’re Outraged by the NFL, Follow This Satirical Blowhard on Twitter

Sports Nut

Giving Up on Goodell

How the NFL lost the trust of its most loyal reporters.

How Can We Investigate Potential Dangers of Fracking Without Being Alarmist?

My Year as an Abortion Doula       

  News & Politics
Weigel
Sept. 15 2014 8:56 PM The Benghazi Whistleblower Who Might Have Revealed a Massive Scandal on his Poetry Blog
  Business
Moneybox
Sept. 15 2014 7:27 PM Could IUDs Be the Next Great Weapon in the Battle Against Poverty?
  Life
Outward
Sept. 15 2014 4:38 PM What Is Straight Ice Cream?
  Double X
The XX Factor
Sept. 15 2014 3:31 PM My Year As an Abortion Doula
  Slate Plus
Tv Club
Sept. 15 2014 11:38 AM The Slate Doctor Who Podcast: Episode 4  A spoiler-filled discussion of "Listen."
  Arts
Brow Beat
Sept. 15 2014 8:58 PM Lorde Does an Excellent Cover of Kanye West’s “Flashing Lights”
  Technology
Future Tense
Sept. 15 2014 4:49 PM Cheetah Robot Is Now Wireless and Gallivanting on MIT’s Campus
  Health & Science
Bad Astronomy
Sept. 15 2014 11:00 AM The Comet and the Cosmic Beehive
  Sports
Sports Nut
Sept. 15 2014 9:05 PM Giving Up on Goodell How the NFL lost the trust of its most loyal reporters.