GREGORY: But don't you think a lot of people look at Washington and say, "This is the kind of politics that I hate." Here you were, you stood up for Harriet Miers despite the fact that she was a friend of the president. You stood up for her despite the fact she didn't have judicial experience, but when it comes to a Democratic nominee you say, "Oh wait a minute, these are real problems here that have to be explored."
McCONNELL: Look, David, the Republicans have treated Supreme Court nominees a lot better than the Democrats have. I can't think of a single Supreme Court nominee by a Democratic president who's been treated the way Robert Bork was, the way Clarence Thomas was, the way Sam Alito was, who was filibustered by the president, the vice president, the Democratic leader and the chairman of the ranking member of the Judiciary Committee. I've never filibustered a Supreme Court nomination.
McConnell suggests that the media coverage of Kagan might be lacking that sense of how Democrats were threatening to break new grounds in partisan obstructionism by filibustering a Supreme Court nomination, a divisive fight supported by Obama, Biden, Reid, and Leahy. News anchors and reporters seem to develop amnesia, so that the Schumers of the world aren't asked if turnabout isn't fair play. Here's how Gregory began the McConnell interview by shoving the notion of hypocrisy in his face:
MR. GREGORY: I'd like to begin with the Kagan nomination. You have questioned her qualifications, suggesting correctly that she does not have judicial experience, she's never been a judge. And yet, back during the ill-fated nomination of Harriet Miers by President Bush, you were on the floor of the Senate and you said the following, "She will bring to the Court a lifetime of experience in various levels of government at the highest levels of the legal profession. ... She is well qualified to join our Nation's highest court." She wasn't a judge either, and yet you were for her.
McConnell said the lack of judicial experience was a "red flag," but not his greatest concern. He cited instead Kagan's banning the military from Harvard Law School's offices to please the hard left, and her arguments as solicitor general in the Citizens United free-speech case, in which "Solicitor Kagan's office in the initial hearing argued that it'd be okay to ban books. And then when there was a rehearing Solicitor Kagan herself, in her first Supreme Court argument, suggested that it might be okay to ban pamphlets. I think that's very troubling."
By contrast, Gregory made no attempt to quote Schumer's words from 2005 back at him, and suggest that perhaps he had a double standard that the American people would find frustrating. One reason might be that at that time, Democrats were intrigued by the idea of Miers veering to the left over time, so experience at first wasn't that big. Here's how Schumer sounded on CBS's Face the Nation on October 9, 2005:
Number one, a lot of us wanted to see somebody that was a well-formed jurist so that they had a track record of what they would do in key cases coming in front of the court. And we could have a debate with the country and within the Senate about what this means, if a person has already ruled, say, on some of the key cases of the day, and have that discussion. Harriet Miers doesn't have that track record and doesn't seem to be well-formed in her judicial philosophy, having never been on the bench.
And over a period of time -- and this is the second point of what's going on -- is jurists have tended -- that have been appointed by Republican presidents, to veer to the left over a period of time if they're not well-formed in their judicial philosophy. And I think you're seeing both of these at play: one, not a clear philosophical position; and number two, the potential over time of veering to the left.
Gregory never raised 2005 with Schumer. Instead, he quoted Kagan's 1993 article that suggested judicial confirmation hearings were too unchallenging. Schumer took no question that questioned his own personal record:
GREGORY: What, what does she mean for the overall direction of the court? Is she a liberal or is she a moderate?
SCHUMER: Look, I think she's -- she tends to be a moderate when you look at her writings.
There was one gentle whiff of pushback on elitism:
SCHUMER: To have someone practical, someone who ran a big legal business, Harvard Law School--which she ran by all reports very well, $160 million budget, 500 people.
GREGORY: That's pretty rarified air, though, Harvard Law School.
SCHUMER: Yeah, but...
GREGORY: You say that the judges are living in rarified air.
Gregory also pushed Schumer from the left about how Kagan could be too tough on terrorism suspects:
As you know, there are liberals who are concerned about her view of executive power, that she might be closer to the Bush administration, frankly, on what the executive can do with regard to a war on terror. And she might actually hold up some views that the Obama administration has put forward with regard to a robust executive power with regard to the war on terror. Is that a concern?
But this was the perfect example of among-us-liberals tone, of knock down that Republican canard, will you?
The Republicans have said she's a blank slate, she doesn't have judicial experience. Take that on.
This is hardly Tim Russert-tough. It's not like the documentary record wouldn't offer grist for some tough pitches at the senior senator from New York.
