Fox News' double standard on “judicial experience”

Fox News personalities have trumpeted what they admit is the Republican talking point that Elena Kagan lacks judicial experience. But one-third of Supreme Court justices have had no state or federal judicial experience at the time they were nominated, and Fox had no such concerns following now-Chief Justice John Roberts' nomination, even though he had only served as a judge for two years.

Fox News claims Kagan has “no experience”

Fox's Carlson: “This woman has no judicial experience .... So just what makes Elena Kagan qualified?” On the May 10 edition of Fox News' Fox & Friends, co-host Gretchen Carlson teased a report on Kagan by stating: “We're going to start now with a Fox News alert. This woman has no judicial experience, but President Obama about to tap her as the next Supreme Court justice. So just what makes Elena Kagan qualified? Well, we're going going to have both sides of the story for you, coming up.” She later stated, “Because she has no judicial experience, but President Obama has picked her for the top seat in the land, Supreme Court justice. So is Elena Kagan the right choice? A live report for you is coming up.”

Fox's Hemmer: “She has no judicial experience, how do you become a Supreme Court justice if that's the case?” On the May 10 edition of America's Newsroom, host Bill Hemmer said “she has never served as a judge,” and asked of Kagan: “She has no judicial experience, how do you become a Supreme Court justice if that's the case?” Later, Hemmer admitted this was a GOP talking point, stating: “Already we are hearing questions about her experience. She's never been a judge. Republicans are sounding that alarm.”

Fox on-screen graphic: Kagan “never served as a judge.” During Kagan's acceptance speech, Fox posted an onscreen graphic which noted that she has “never served as a judge.”

Fox Nation: “Obama's Court Pick: No Judicial Experience, No Paper Trail?” The Fox Nation linked to a post on Kagan by Fox News Contributor Michelle Malkin with the headline “Obama's Court Pick: No Judicial Experience, No Paper Trail?”

Fox's Malkin: Kagan's nomination “concerning given her complete lack” of judicial experience. The Malkin post Fox Nation linked to included Malkin's 2009 criticism of a potential Kagan Supreme Court nomination:

Dean Kagan's nomination to the Supreme Court would be concerning given her complete lack of judicial or appellate experience. She has never been a judge or even argued a case in a court of appeals. It is difficult to see how her experience fundraising for Harvard Law School qualifies her for a seat on the Nation's high court. “Kagan 'Supremely Qualified' -- With No Experience?” linked to an article about “backers” of Kagan's nomination rebutting charges that she will be “Obama's Harriet Miers” with the headline “Kagan 'Supremely Qualified' -- With No Experience?”

Note to Fox: more than three dozen Supreme Court justices had no prior judicial experience Dozens of justices had no prior judicial experience. As Media Matters' Adam Shah noted,'s Supreme Court Center found that dozens of the 111 current and past Supreme Court justices had no judicial experience when they were first nominated. In fact, William Rehnquist and Earl Warren -- two of the past four chief justices -- had never been judges before their appointments as justices. Both were nominated by Republican presidents.

Despite similarities, Fox did not raise concerns about Roberts' experience after his nomination

Media Matters conducted a review of the Fox News transcripts available in Nexis for July 19, 2005, and July 20, 2005, and found no examples of Fox News personalities raising concerns about Roberts' limited judicial experience. The following is a sampling of Fox News' initial remarks about Roberts' nomination:

Greta Van Susteren: Roberts “has the intellectual prowess” for the court and “a fine background.” From the July 19, 2005, edition of Fox News' On the Record with Greta Van Susteren:

VAN SUSTEREN: You know, he -- I'm sure -- it sounds like he has the intellectual prowess for it. I mean, he's got a fine background.


VAN SUSTEREN: But even if you look at this candidate, you know, it's sort of interesting. They're all judges. I mean, the only -- the only one who's not a judge right there is Justice [William] Rehnquist, who came out of the Justice Department.

Sean Hannity: Roberts is a “mainstream conservative” who seems to “connect with both sides.” From the July 19, 2005, edition of Fox News' Hannity and Colmes:

HANNITY: He seems like a mainstream conservative. What's interesting, the president pointed this out tonight, Judge, is that he had more than 150 members of the D.C. bar, including well-respected attorneys like Lloyd Cutler, who was the White House counsel to both President Carter and Clinton, C. Boyden Gray, and of course Seth Waxman, who was President Clinton's solicitor general.

I mean, he seems to, in that sense, connect with both sides.


Democrats and Republicans, prominent lawyers in D.C., really respect this man. They admire his -- his intellectual acumen, his position on the law, his consistency.

Newsweek's Stuart Taylor: Roberts is “well qualified” despite not having “an extensive record.” From the July 19 edition of Fox News' Special Report:

TAYLOR: John Roberts is a Bush appointee to the federal appeals court here in Washington, D.C., often called the second-most important court in the country. He's only been there two years, so he doesn't have an extensive record there.

But he's very well-qualified. He had a reputation as being one of the best, if not the best, appellate litigator in the country. Conservatives are very comfortable with him. They think he's one of them.

But he'd be much easier to confirm -- he'd be easier to confirm, maybe much easier than Luttig, I think, because he doesn't have a controversial paper trail, and he's got a lot of friends across the political spectrum. Luttig seems to hang out more with his conservative buddies.

Bill O'Reilly: Roberts a “solid guy” who “knows the Constitution.” From the July 20 edition of Fox News' The O'Reilly Factor:

O'REILLY: The “Talking Points Memo” this evening is about Supreme Court nominee John Roberts. Looks like solid guy to me. Smart, good citizen, knows the Constitution. I expected -- I expect him to be confirmed by the end of the year.

Brit Hume: Is Roberts a “true-blue conservative jurist.” From the July 20 edition of Fox News Special Report with Brit Hume:

HUME: So the question is whether -- who is this guy? What is he really like? Analytical observations now from Fred Barns, executive editor of the “Weekly Standard,” Mort Kondracke, executive editor of “Roll Call,” and Nina Easton, deputy Washington bureau chief of the Boston Globe, FOX News contributors all.

Well, we've now had overnight to look at this man's records, two years worth of record on the court and whatever else we might know about him.

Nina, what's your sense about whether this is a true-blue conservative jurist or is this somebody that we simply can't tell?

By contrast, several Fox reporters and legal experts highlighted Kagan's experience

Fox's Bream predicts Kagan will get GOP votes because she is “brilliant” with a “fantastic resume.” During Fox's May 9 live Supreme Court coverage, Supreme Court reporter Shannon Bream said:

Senator Harry Reid, you know the top Democrat in the Senate has said again and again during the process -- he was really pushing the president to select somebody that wasn't sitting around in a black robe, he didn't want see another judge. He really was very vocal about that a number of times over the last few weeks, once we knew that Justice [John Paul] Stevens was gonna step down. So I would think this is the kind of nominee that will his full backing, his full support, and that of many, many other top Democrats and even some Republicans in the Senate, because she's had a very distinguished career. No one would argue anything but that she is a brilliant individual, she's got a fantastic resume, and she is known as being a consensus-builder, something that's been discussed with her before. When she was the dean at Harvard she brought together a lot of people, students and faculty and was really seen as somebody who was a bridge builder.

Fox legal analyst Wiehl: Kagan “an absolute gem” with “excellent qualifications.” In a May 10 opinion piece, legal analyst Liz Wiehl wrote that she found Kagan “to be an absolute gem,” and added: “Some will question her lack of judicial experience, but that perceived prerequiste is relatively new...don't forget Justice Warren (of the Warren court) was never a judge before ascending to the Court. At Harvard, she was known as an avid listener, who could get to the heart of the matter with a measure of both logical analysis and compassion. Sound like excellent qualifications to me.”

Supreme Court expert Patricia Millet: “There have been plenty of other justices who have not been judges at the time they were appointed.” During their March 10 live Supreme Court coverage, Fox hosted Supreme Court expert Patricia Millet, who stated.

MILLET: There have been plenty of other justices who have not been judges at the time they were appointed, or ever, one of the most famous being Chief Justice Earl Warren, Justice Goldberger - [Arthur] Goldberg, excuse me -- there have been plenty in history. In fact, it's been only a more recent trend to have it as heavily populated by former court of appeals judges as it is now.

Fox's Baier notes Kagan's “long resume,” Skinner point out other justices had not previously served as judges. On the May 10 edition of Fox News' Happening Now, anchor Jane Skinner stated, “Interesting to note though, she wouldn't be setting a precedent here, I mean, Rehnquist, [Earl] Warren, there are several names of those who were not judges before sitting on the high court.” Special Report host Bret Baier replied, “That's right, and she does have a long resume. Democrats will also point out that she was nominated to be an appellate court judge, but they'll say that Republicans blocked her from getting into that seat on the bench.”

Kagan has extensive experience, and her lack of judicial experience is a direct result of the GOP blocking her nomination

Kagan served in Clinton White House, was dean of Harvard Law School, currently serves as solicitor general. Contrary to Fox's suggestion that Kagan has “no experience,” Kagan has extensive relevant experience. From the Senate Judiciary Committee website:

Kagan has not had judicial experience because GOP blocked her nomination. Kagan was nominated to the U.S. Court of Appeals for the District of Columbia Circuit in 1999 by President Clinton, and the Senate, then controlled by Republicans, blocked her nomination.