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Out-of-context quotes and Kagan (II): Miers, Media Matters, Jon Stewart, and Me

Regarding out-of-context quotes and my commentary on Elena Kagan's nomination, an excerpted version of my remarks landed me on Tuesday night's Daily Show -- my first encounter with Jon Stewart!

Here's the clip:

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As is probably obvious, the quote was taken out of context. Last Friday, Fox called me over to their studios to discuss the pending Supreme Court nomination. The conversation was not live but rather pre-recorded for their nightly news broadcast Special Report. And although rumors were already circulating that Elena Kagan would be the president's nominee, they were unconfirmed (and later that day expressly rejected by the White House). So, in the course of the discussion, I commented on all four of the president's reported finalists, with a special focus on Kagan. The most obvious contrast between Kagan and Diane Wood, Merrick Garland, and Sidney Thomas was, of course, Kagan's lack of judicial experience. I noted how that made her record tough to evaluate and that -- in this specific respect -- if we were comparing her nomination to that of Sonia Sotomayor, Sotomayor's record was closer to that of Alito (in terms of extensive judicial experience) whereas Kagan's was closer to that of Miers. My broad comments evoking that comparison and contrast were not that dissimilar to those I wrote here and here.

In editing for the show, Fox cut my fifteen-minute taped interview down to the following: "This is a potential nomination that's closer to Harriet Miers than it is to Sam Alito. We're closer to Harriet Miers in the sense that there's not a lot of written track record here." (The clip, which cut between two proximate but noncontiguous portions of my comments, was juxtaposed against a pro-Kagan clip from Nan Aron.)

Although the clip Fox chose to use was only a portion of my broader remarks, it retained much of the original meaning that was lost in the short segment used on The Daily Show. The first sentence certainly wasn't arguing that Kagan was "another Harriet Miers," and the second clarified that in comparing Kagan to Miers I was specifically talking about her lack of a "written track record," not her competence or capabilities.

The Daily Show is of course a comedy program, so it's not surprising they'd cut a broader clip to build their overall comedic narrative. Media Matters for America, which doesn't style itself a comedy program but often resembles one, has no such excuse; but they nevertheless attacked as "baseless" my full quote that ran on Fox Friday night. They didn't explain why they thought my comments were in fact baseless but rather offered up rebuttal points from others taking purportedly opposite positions. And they apparently failed to appreciate the irony in using Ted's May 10 posting here as their first rebuttal point (you'd think that the fact you're purporting to rebut a Manhattan Institute scholar with the statement of another Manhattan Institute scholar, from a post on a Manhattan Institute website, might be worthy of comment, no?). The Media Matters "memo" also failed to appreciate (or to disclose) that the first piece linking Kagan to Miers, which Ted was rebutting, came from the left.

So, just to clarify:

  1. I agree with Ted that Kagan is not "a Democratic version of Harriet Miers," and I don't think that follows from my comments, even as cut for the news segment;

  2. I disagree with Jon Stewart that Harriet Miers is "dumb" -- though I was skeptical of her nomination, even from the outset; and

  3. I think Media Matters for America does a pretty lame job of "correcting conservative misinformation in the U.S. media."

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Rafael Mangual
Project Manager,
Legal Policy

Katherine Lazarski
Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.