On Monday, President Barack Obama nominated Elena Kagan, U.S. solicitor general, to the Supreme Court of the United States. If confirmed by the Senate, Kagan will fill the vacancy created by the resignation of 90-year-old Justice John Paul Stevens. Kagan is 50. She will likely sit on the court for a very long time, still making the law of the land when Obama is off doing the obscure good works that are the lot of ex-presidents. Now the brutal confirmation process begins. Public hearings by the Senate judiciary committee will happen soon. (If the committee recommends Kagan, her confirmation by the full Senate will likely follow.) Anything can happen at the committee hearings. Justice Clarence
Thomas described his own colourful 1991 confirmation hearing as a “circus” and “national disgrace.”
Already, one persistent criticism has surfaced: that Kagan has no prior judicial experience. For most of her career, she has been either a law professor or a government employee. How can you do the job properly without at least a smidgen of on-the-job training? Furthermore, critics point out, because Kagan has never been a judge, there is no paper trail of judgments that show who she is and what she truly believes. Finally, they say, no one without judicial experience has been appointed a Supreme Court judge since William Rehnquist and Lewis Powell were chosen by Richard Nixon in 1971.
Those opposed to the Kagan nomination had better come up with something better. The “no prior judicial experience” criticism is wrong-headed in principle. The Supreme Court needs diverse experience and many points of view. “The more homogenous the group, the worse the quality of the decisions they make,” Tracey George of Vanderbilt University law school has written. Timothy O’Neill, in a law review article entitled “The Stepford Justices,” argues that a mix of justices with wide legal and governmental experience is “vital for the effective functioning of the nation’s highest collegial court.” The two professors are correct. At the moment, every Supreme Court justice is a former federal appeals court judge. A Supreme Court justice without the appellate court experience that all the others possess is a good, not a bad, thing—provided that she brings something else of value to the bench.
And Kagan does. She is a legal scholar. Her academic qualifications and intelligence are not in question. She has taught at the University of Chicago and Harvard (where she was dean of law). A Supreme Court justice must be capable of sophisticated legal analysis, of weighing complex and competing legal arguments, and of writing clearly. There is every reason to think Kagan can do these things. At her 2009 confirmation hearings for solicitor general, she said she brings “a lifetime of learning and study of the law.” This was self-serving, but true nonetheless.
History says Supreme Court justices with no prior judicial experience can do a good job, even an excellent one. In Canada, Bora Laskin, primarily a legal academic, served with distinction on the Supreme Court, including 11 years as chief justice. In 1953, Earl Warren went directly from being governor of California to chief justice. Most consider him to have been a great chief justice, particularly when it came to civil rights (although president Dwight D. Eisenhower, who nominated Warren thinking he would be a conservative judge, is supposed to have said that the nomination was the “biggest goddamn mistake of my career”). Warren’s understanding of the law-making process, as a former politician, stood him in good stead when interpreting and adjudicating the law as a judge. The closest Canadian equivalent is Doug Abbott, Louis St. Laurent’s minister of finance, appointed to the Supreme Court in 1954. Abbott was not a great judge, but he was a useful one.
Louis Brandeis was economics adviser to Woodrow Wilson when Wilson appointed him to the court in 1916, and Felix Frankfurter was a Harvard law professor when appointed by Roosevelt in 1939; both are regarded as outstanding justices. There are other examples. About 40 of the so far 111 U.S. Supreme Court justices had not been judges before their appointment. In Canada, Ian Binnie, the only sitting Supreme Court justice who was not a judge before, has had an outstanding career on the highest court.
If there is a cogent criticism of the Kagan nomination, it is that Kagan, a putative member of the East Coast legal elite, is too much like those who already sit on the Supreme Court in some other respects. Obama has said that, in picking Kagan, he has reached beyond the “judicial monastery.” There is more than one kind of monastery. Kagan studied law at Harvard. Every other Supreme Court judge went to either Harvard or Yale law school. There are 200 American Bar Association approved law schools in the United States. What happened to the other 198?