Grading PolitiFact (Texas): John Cornyn and the importance of judicial experience (Updated)

PolitiFact, the fact checking outfit begun by the St. Petersburg Times, usually rates according to a "Truth-O-Meter" rating. Some stories, however, are graded according to the similarly cutesy "Flip-O-Meter." The "Flip-O-Meter" is supposed to rate whether a position is held consistently.

Which brings us to PolitiFact and Sen. John Cornyn (R-Tex).

The issue:

Judging from the above, PolitiFact presumes to judge Cornyn's consistency on the importance of judicial experience as a qualification for a Supreme Court justice.

The fact checkers:

W. Gardner Selby:  writer, researcher
Brenda Bell:  editor

Analysis:

This PolitiFact piece finds Cornyn guilty of a "Half Flip."  It will be useful to highlight the PolitiFact understanding of that term.  On second thought, it would be useful to highlight the PolitiFact understanding of the term if it was available.  The description is minimal:

We also rate the consistency of public officials on our Flip-O-Meter using three ratings: No Flip, Half Flip and Full Flop.

Needless to say, the practice of omitting any description of standards with respect to the application of the "Flip-O-Meter" may assist PolitiFact in avoiding the appearance of inconsistency.

Fortunately, the stories ought to provide us with some kind of picture of PolitiFact's practical guidelines.

On with the analysis:

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.”

Is Cornyn questioning Kagan's lack of judicial experience, as charged above by PolitiFact?  If Cornyn had said something like "Kagan is a questionable choice because she lacks judicial experience" then that charge might make decent sense.  Unfortunately for PolitiFact, Cornyn's statement passes no judgment on Kagan's nomination other than finding it surprising.  And he spells out the rationale for the surprise clearly, by citing the popular belief "that prior judicial experience is a necessary credential for a Supreme Court justice."


PolitiFact might have taken the time to verify whether most Americans do believe that prior judicial experience is a necessary credential for a Supreme Court justice.  But if they let that point pass then they are left with little else from Cornyn other than the opinion that it is surprising that President Obama would go against popular opinion with his selection of Kagan.

Is Cornyn inconsistent?  More from PolitiFact:

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.

Beware the shell game.  W. Gardner Selby has introduced real world experience to the mix, but the story is supposed to concern Cornyn's consistency on the importance of judicial experience.  The only relevant portion of the above paragraph is the line "Cornyn previously came to terms with a nominee without judicial seasoning."  And PolitiFact has already noted that Cornyn has not rejected Kagan based on a lack of judicial seasoning.  In other words, there is not yet any apparent inconsistency.  Then again, Selby has not yet tried to make his case.

Selby appropriately moves to a discussion of Cornyn's statements regarding Bush nominee Harriet Miers.   After noting that Cornyn was offering "praise" of Miers, we were offered the following quotations:

“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.”

“These (previous non-judges) include several luminaries from the school of judicial restraint, including the late Chief Justice William Rehnquist.”

“(S)ome 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…”

And, in answer to the question of whether it would be almost impossible to successfully appoint a Supreme Court justice who had no judicial experience:

"(Miers) 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.”

The first three quotations, in spite of the introduction by Selby, do not contain any praise of Miers.  They contain only a continued explanation as to why lack of judicial experience should not disqualify a candidate for a spot on the Court.  And that is perfectly consistent with Cornyn's statements about Kagan.

So what about the last quotation?  Am I dodging that one?  It shows Cornyn praising Miers' lack of judicial experience, doesn't it?

It doesn't.

Cornyn argued that Miers' life experiences, not the mere absence of judicial experience, would "fill some very important gaps in the Supreme Court."  That gap exists, Cornyn said, because the existing judicial paradigm favors (bold emphasis added) "people who've been federal judges, circuit judges most of their lives, or academicians."

Kagan has spent the bulk of her adult life in academia.

Even through this point in Selby's story we have no reasonable evidence from PolitiFact of any kind of inconsistency from Cornyn.  And we're getting pretty close to the end.

Can Selby pull his britches out of the fire?

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."

The above quotation is irrelevant with respect to the importance of judicial experience.  It is relevant only with respect to a potential corollary of judicial experience.  That is, a paper trail potentially indicative of an appointee's judicial philosophy.  Again, during his press conference addressing the Miers nomination, Cornyn made a similar observation regarding concerns that Miers' judicial philosophy was unknown.  Cornyn addressed that concern partly through long personal acquaintance with Miers.  He recommended dealing with that concern via questioning of the appointee.  Selby's search for a flip remains a flop.

Selby again:

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

Flop: irrelevant to the issue of judicial experience.

Selby again:

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."

Flop:  Legal experience is a different category than judicial experience and as such is irrelevant to the latter.

Whoa.  What have we here (from Selby):

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

 McLaughlin is exactly right.  Selby should have paid attention.  But he didn't:

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.

Selby is "pants on fire" wrong with the above characterization.  Cornyn certainly praised Miers, but did not do so based on her lack of judicial experience.  He praised her experience as outside-the-beltway and relevant in that she had considerable experience doing law.  Regarding her lack of judicial experience, Cornyn offered reasons why that should not serve as a disqualifying concern.  Put another way, rather than using lack of judicial experience as a positive on Miers' behalf, Cornyn played defense on the issue.

It's great to know that PolitiFact Texas is capable of demonstrating the same amazing fact checking expertise as the parent organization.

To borrow the phrasing I posted earlier to PolitiFact's FaceBook page, there's no flip flop at all on this from Cornyn. Not a half. Not a quarter. Not an eighth. Nothing. Nada.

The grades:

W. Gardner Selby:  F
Brenda Bell:  F

Selby's case was incoherent and Bell ought to have noticed.

Afters:

Cornyn's statements following Miers' withdrawal from consideration for the Supreme Court help illuminate his expression of surprise at Obama's appointment of another candidate lacking judicial experience.  Scroll down about halfway.



Update:

Fixed a paragraph that had amounted to a non sequitur, and corrected numerous misspellings of W. Gardner Selby's name.  Apologies to Mr. Selby for the latter set of errors.  I blame it all on my editor.

Also provided a link to the PolitiFact story.  Better late than never.