Responding to attempts to analogize Elena Kagan to Harriet Miers — which are certainly problematic in several respects — Matt analogizes Elena Kagan to John Roberts. I think this analogy, however, is at least equally problematic. First of all, Roberts did have a judicial track record in the federal appellate courts. But even more importantly, orthodox Republican conservatives in the post-Reagan era are a lot more ideologically homogeneous than mainstream elite Democrats. As Matt reminds us by bringing Larry Summers into the discussion, elite mainstream liberalism encompasses a fairly wide variety of views, not all of them very attractive or progressive. Maybe Matt thinks that a moderate, largely pro-business, squishy on civil liberties justice like Stephen Breyer is good enough in the context of a soon-to-vanish 59-41 majority with another appointment almost certainly pending next year. I don’t. And while Kagan could turn out to be better than Breyer, she could also be worse; we have no idea. And that’s the problem.
In a context in which a more accomplished and more clearly liberal justice could be confirmed, the pick just can’t be defended.