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By W. Gardner Selby May 11, 2010

Sen. John Cornyn questions Elena Kagan's absence of judicial experience, but celebrated 2005 nominee's lack of bench time

U.S. Sen. John Cornyn has qualms about President Barack Obama’s nomination of the nation’s solicitor general, Elena Kagan, for the U.S. Supreme Court — including her lack of bench experience.

In a statement issued Monday, Cornyn doesn't say he's against confirming her for the vacancy to be left by Justice John Paul Stevens, who's retiring this summer. But Cornyn, a member of the Senate Judiciary Committee, calls Kagan "a surprising choice because she lacks judicial experience. Most Americans believe that prior judicial experience is a necessary credential for a Supreme Court justice."

Then again, Cornyn previously came to terms with a nominee without judicial seasoning. In 2005, he championed President George W. Bush's nomination of Harriet Miers to the court, casting the absence of a judgeship on her resume as a woman-of-the-heartland quality. On Monday, he took issue with Kagan's "rarefied" background, notable for her ties to Harvard University, where she was a student and later the dean of its law school, and steepage in Washington, where she was a Supreme Court clerk and, later, a White House aide before becoming solicitor general.

Has the junior Republican senator from Texas reversed himself on justices needing a background robed in black? Cornyn's comments -- then and now -- give us a chance to test the PolitiFact Texas Flip-O-Meter.

First, a look back.

In October 2005, Cornyn took the occasion of Miers' nomination to praise the Texas lawyer then serving as a White House adviser.

On Oct. 3, Cornyn said: "Some have said that perhaps we don't know very much about her because she hasn't been a judge before, but the fact is more than 40 Supreme Court justices were nominated and confirmed to that position without prior judicial experience," according to a transcript by the Federal News Service.

Cornyn said that day on PBS’s "NewsHour" that 41 of 109 justices served on the court without prior judicial experience — a ratio he rehashed in an opinion article published two days later in the Wall Street Journal. Cornyn wrote: "These (previous non-judges) include several luminaries from the school of judicial restraint, including the late Chief Justice William Rehnquist." Earlier in the piece, Cornyn said "some have criticized the president because he did not select an Ivy-League-credentialed federal appeals court judge for the open seat. I think this criticism is misplaced. For one thing, there is no evidence that service on the federal court of appeals is a prerequisite for distinguished service on the Supreme Court…"

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On Oct. 27, at Miers' request, President Bush withdrew her nomination, which was imperiled by opposition from the right and from the left. On Monday afternoon, posted an item quoting from Cornyn’s press conference that day when he was asked if Miers’ nomination showed it’d be almost impossible for someone to serve on the court if they hadn't been a judge. The Dallas Morning News also noted the contrast between Cornyn now and Cornyn then.

According to the Political Transcript Wire, Cornyn said he hoped not, adding that he'd thought Miers’ qualifications, which were rooted in decades as a Dallas lawyer, "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."

And what of his comments now about Kagan?

After issuing his statement noting Kagan's lack of judicial experience, Cornyn told Texas reporters Monday: "We really don't know anything about how Ms. Kagan would perform as a judge if she was confirmed because she has no record."

Cornyn also aired several concerns about Kagan including her decision as dean of the Harvard law school not to allow military recruiters on campus.

In a Tuesday interview with MSNBC, Cornyn stressed what he said is Kagan's lack of practical legal experience. Asked if he thought Miers was more qualified than Kagan, Cornyn replied: "Certainly, by virtue of her practical legal experience, Ms. Miers had more experience." He noted that neither one was previously a judge. He then said: "I don't think that should be a disqualifier."

His spokesman, Kevin McLaughlin, separately suggested there's no inconsistency in Cornyn's statements about judicial experience.

We disagree. Cornyn wholeheartedly praised Miers' lack of judicial experience in 2005. Now he sees such a gap as one of Kagan's weaknesses, though not (as of Tuesday) reason alone to deny her confirmation. That's at least a Half Flip.

Our Sources

U.S. Sen. John Cornyn, "Sen. Cornyn Statement on Nomination of Elena Kagan to United States Supreme Court," May 10, 2010

Interview, Kevin McLaughlin, communications director, U.S. Sen. John Cornyn, May 11, 2010

U.S. Sen. John Cornyn, opinion article, Wall Street Journal, "Harriet Miers, Finally, a Supreme Court nominee who understands real people," Oct. 5, 2005 (accessed May 10, 2010)

Dallas Morning News, news article, "Cornyn questions Kagan's Supreme Court credentials," May 10, 2010

Democratic National Committee, press release, "DMN finds another example of Republicans' shifting standard on experience," May 10, 2010

El Paso Times, news article, "Sen. John Cornyn not ready to endorse court nominee," May 11, 2010


MSNBC, "First Read," blog post, "Cornyn questions’s Kagan’s experience," and video, May 11, 2010

The New York Times, "A Climb Marked by Confidence and Canniness," May 10, 2010

PBS, "NewsHour With Jim Lehrer," transcript, "The Miers Nomnination," Oct. 3, 2005 (accessed May 10, 2010)

Political Transcript Wire, "U.S. SENATOR JOHN CORNYN (R-TX) HOLDS A NEWS CONFERENCE ON THE WITHDRAWAL OF THE HARRIET MYERS NOMINATION," Oct. 27, 2005 (Nexis search), "GOP: Judicial experience matters, unless it doesn't," May 10, 2010

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More by W. Gardner Selby

Sen. John Cornyn questions Elena Kagan's absence of judicial experience, but celebrated 2005 nominee's lack of bench time

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