WASHINGTON — So, Senator, how much does judicial experience matter when considering a Supreme Court nominee?
It depends on when you’re asking.
Republicans now criticizing President Barack Obama’s nominee, Solicitor General Elena Kagan, for her lack of judicial experience welcomed that same lack of credentials a few years ago, when a president of their own party nominated a non-judge for the high court.
In 2005, when then-President George W. Bush nominated Harriet Miers to the Supreme Court, plenty of Republicans said they found it refreshing that Miers’ experience amounted primarily to her time as a corporate lawyer and Bush aide.
That included Texas Sen. John Cornyn, who noted then that “40 percent of the men and women who have served as Supreme Court justices” had no judicial experience.
“One reason I felt so strongly about Harriet Miers’ qualifications is I thought she would fill some very important gaps in the Supreme Court,” Cornyn said in 2005. “Because right now you have people who’ve been federal judges, circuit judges most of their lives or academicians.”
Now, with a Democrat in the White House, what Cornyn once considered refreshing in a high court nominee is in Kagan’s case “surprising.”
“Ms. Kagan is … a surprising choice because she lacks judicial experience,” Cornyn said Monday. “Most Americans believe that prior judicial experience is a necessary credential for a Supreme Court Justice.”
A former Clinton administration aide and dean of the Harvard Law School, Kagan once was nominated for the federal bench, but her bid was stonewalled by a Republican Senate majority.
The top Republican on the Senate Judiciary Committee, Sen. Jeff Sessions of Alabama, likewise found Miers’ qualifications suitable five years ago: “It is not necessary that she have previous experience as a judge in order to serve on the Supreme Court,” Sessions said. “It’s perfectly acceptable to nominate outstanding lawyers to that position.”
But on Monday, Sessions was seeing things differently. Kagan, he said, “warrants great scrutiny” because of her lack of time as a judge. “Ms. Kagan’s lack of judicial experience and short time as solicitor general … is troubling,” he said.
And the list goes on. Republican Sen. Kay Bailey Hutchinson of Texas thought Miers was a “wonderful choice” in 2005, but today she “has some concerns over Elena Kagan’s lack of judicial experience.”
Sen. John Thune, R-S.D., said Monday that Kagan’s lack of judicial record raises questions — though he said in 2005 that he was not troubled by Miers’ lack of judicial experience.
Another Republican, Alabama Sen. Richard Shelby, likewise didn’t see Miers’ lack of time on the bench as a holdup. On Monday, he said the same factor is a cause for further scrutiny of Kagan.
Despite those senators’ praise, Miers ended up withdrawing her name under heavy criticism from conservatives who questioned her credentials on constitutional law and worried she wouldn’t be a judicial conservative.
The last nominee to serve without judicial experience? The late Chief Justice William Rehnquist, who was nominated to the court by President Richard Nixon and served from 1972 to 2005, and is still lionized by conservatives.
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