Rookie rules
Is Elena Kagan ready for the high court?
President Obama is expected today to nominate current Solicitor General Elena Kagan to the Supreme Court. Among the now routine ideological controversies that surround all Supreme Court nominations, Kagan adds one unusual particularity to the mix. She would be the first nominee since longtime Chief Justice William Rehnquist to ascend to the high court without having previously served on the bench.
Expect Kagan’s lack of adjudicating experience to become one of several criticisms forwarded by Republicans on the Senate Judiciary Committee. Kagan has an impressive resume, but do the detractors who point to her lack of judicial experience have an argument?
Elena Kagan is no legal novice. She earned her JD from Harvard, clerked for the DC court of appeals, worked in private practice, and then became a tenured professor at the University of Chicago law school. Beginning in the mid-90s, she became Deputy White House Counsel, Deputy Assistant to the President, and Deputy Director of the Domestic Policy Council under President Clinton. In 1999 Clinton nominated her to the federal bench, but her nomination was effectively killed in the Republican Senate. Between 2003 and 2009, when President Obama appointed her Solicitor General, she was Dean of Harvard Law School.
In addition to her voluminous experience with jurisprudence as a lawyer, legal clerk, and legal academician, she has also had direct experience making policy. By the same token, any judge would probably concede that the unique skill of adjudicating legal cases takes practice. We rely on judges to do more than simply understand and argue the law. We also expect them to introduce extremely sophisticated abstract reasoning about the law to specific cases.
There is almost no question that Kagan, given her extensive experience and obvious talents, could learn this skill. But she is not being nominated for just any judgeship–she’s being nominated to the highest court in the land. The Supreme Court is the court of last resort. It provides guidance to all lower courts, sets legal interpretations that last decades, and takes on among the most challenging social issues.
The critics who say Kagan needs practice likely have a point. The responsibility with which she will be vested is vast and profound.
At the same time, recent (by Supreme Court standards) experience augurs well. Rehnquist worked in the Justice Department but never served on the bench. He rose to become Chief Justice and put together a reign of which his conservative followers have been proud.
Whether or not nominating Kagan will prove to be a victory or mistake for Obama will take decades to decide. But she’s likely up to the task. And that’s the most important consideration in nominating someone to join the most important arbiters in our constitutional system.
-Sam
Related posts:
- Yes, but is she persuasive?
- Graham’s vote for Kagan
- Kagan’s consequentialism
- Should Supreme Court justices have opinions?
- Souter to retire
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[...] of Elana Kagan to the Supreme Court has sparked a debate on the Left, not so much over her lack of experience, but over the perception that she is more conservative than retiring Justice John Paul Stevens. [...]