Justice Antonin Scalia does not think Solicitor General Elena Kagan’s lack of judicial experience should disqualify her from the Supreme Court. ABC News reports:
When I first came to the Supreme Court, three of my colleagues had never been a federal judge,” said Scalia who joined the Court in 1986 after being nominated by President Reagan. “William Rehnquist came to the Bench from the Office of Legal Counsel. Byron White was Deputy Attorney General. And Lewis Powell who was a private lawyer in Richmond and had been president of the American Bar Association.”“Currently, there is nobody on the Court who has not served as a judge –indeed, as a federal judge — all nine of us,” he continued. “. . . I am happy to see that this latest nominee is not a federal judge – and not a judge at all.”
I think Justice Scalia is absolutely correct that prior judicial experience should not be a requirement for confirmation to the Supreme Court, but I still believe it is a plus. The bigger problem, in my opinion, is the relative lack of other legal experience among the justices. Other than Justice Sotomayor, none of the justices on the court has much trial-level legal experience, judicial or otherwise, as opposed to appellate. None of the justices have significant experience as defense attorneys or in transactional work. The Court is also dominated by former executive branch officials and northeastern elites.
Is Kagan qualified to sit on the Court? I think so. The strongest experience-related argument against Kagan is that she has relatively little real legal experience of any kind, not simply that she lacks judicial experience. Other than a very brief stint at Williams & Connolly, her entire professional career prior to 2009 consisted of teaching, deaning, clerking, and working in the White House. Her scholarly work is also focused on a relatively small range of issues with little relevance for much of the Court’s docket. Don’t get me wrong, administrative law and the First Amendment are very important, but the bread-and-butter of the Court’s docket is more mundane, and is not the sort of thing with which she has much experience. But much the same could have been said of many others who have served honorably and effectively on the Court. So in the end, while I understand the criticism of her record, I think it is misplaced. By all accounts, Kagan has a sharp legal mind, and her academic work is quite strong (much stronger than some of her critics suggest). Like Justice Scalia, I think she will bring valuable experience to the Court, even if I expect to disagree with her much of the time.
Reader Q says:
Kagan is not qualified. Comparisons to other non-judge nominees — like Earl Warren and Rehnquist — are false.
Earl Warren had been a prosecutor immersed in the judicial system. Rehnquist had 16 years of private practice before being a high-ranking government lawyer?
Kagan is an ivory tower academic with little real-world legal experience, and few scholarly publications (which even liberals like Paul Campos have described as “lifeless”, “dull,” and unimpressive).
And Kagan’s track-record as SG, such as failing to defend federal statutes that she had an obligation to defend, is not a plus.
May 27, 2010, 12:01 pmSarcastro says:
[Is there any evidence that differing experience leads to different votes on the Court?]
May 27, 2010, 12:06 pmCrazyTrain says:
Interestingly, Justice Scalia is actually mistaken — four of his colleagues had not been federal judges prior to taking their seats on the Supreme Court: White, Rehnquist, Powell (the three he mentions) and Sandra Day O’Connor (whom he overlooked).*
*Though I guess technically, he didn’t say “only” three so his statement may have been literally true.
May 27, 2010, 12:26 pmDr. K says:
Oh hell. Just give her the Nobel peace prize while you’re at it. She at least has the qualifications to have earned that.
May 27, 2010, 12:35 pmDilan Esper says:
Being a legal academic and a law school administrator is also relevant experience.
May 27, 2010, 1:03 pmBored Lawyer says:
I belive O’Connor had been a state court appellate judge, so perhaps that is why Scalia did not include her with the other three (she had been a judge, just not a federal one).
May 27, 2010, 1:10 pmAngus says:
…because she’s liberal.
Look, she’s much more qualified that Clarence Thomas was when he was nominated. Republicans might not like it, but Thomas has set the new bar for SCOTUS pretty low.
May 27, 2010, 1:13 pmPersonFromPorlock says:
I’ll throw in the idea that Supreme Court nominees not only shouldn’t be judges, they shouldn’t even be lawyers. How better to ensure a body of law comprehensible to lay persons, than by forcing lawyers appearing before the Court to make their case to non-lawyers?
May 27, 2010, 1:15 pmPablo says:
I think the fuss over the last year about the justices all having prior federal judicial experience is overstated. While the careers of some were in large part defined by their circuit judgeships, both Thomas and Roberts were judges for less than two years, hardly enough time for their views and experience to be skewed (if that is the right word). Scalia and Stevens were circuit judges for only four and five years respectively. I don’t see how such short tenures can be seen as defining what they brought to the table as justices. If anything, I would think, a few years on the federal bench can only help with the famously steep learning curve once one joins the Supreme Court.
May 27, 2010, 1:41 pmBob White says:
Thomas is the only current justice (including both Kagan and Stevens in that analysis) who’s ever been anything other than a clerk, academic, bureaucrat, litigator, or judge. Hurrah for his Monsanto days.
May 27, 2010, 2:20 pmCJColucci says:
Kagan is not qualified. Comparisons to other non-judge nominees — like Earl Warren and Rehnquist — are false.
Earl Warren had been a prosecutor immersed in the judicial system. Rehnquist had 16 years of private practice before being a high-ranking government lawyer?
Kagan is an ivory tower academic with little real-world legal experience, and few scholarly publications (which even liberals like Paul Campos have described as “lifeless”, “dull,” and unimpressive).
And Kagan’s track-record as SG, such as failing to defend federal statutes that she had an obligation to defend, is not a plus.
Doesn’t sound all that different from Felix Frankfurter/
May 27, 2010, 2:28 pmKamal says:
I’ve never understood, even when I considered myself a libertarian, why people would consider being an elite a bad thing. The definition of elite being “a group or class of persons enjoying superior intellectual status”. Isn’t that what we want on the supreme court? Do we really want dumb “regular” people?
May 27, 2010, 2:49 pmEmsl says:
I think it is an advantage to have different perspectives on the Supreme Court. There are times when they lapse into appellate-judge mode instead of focusing on the big legal picture as they are supposed to do. The recent denial of cert. in the criminal contempt case seems to be an example of that. I would also note that at least one other person from Harvard Law School went directly to the Massachusetts Supreme Judicial Court (the supreme court of the state)– Charles Fried — and by a general consensus, he was a good justice.
To be clear, I disagree with a number of positions that she has articulated in the past and suspect that the hearings will bring out more, but she is qualified with respect to experience and intellect.
May 27, 2010, 3:17 pmhaha rimshot says:
The objection was to northeastern elites, not just your ordinary elites.
May 27, 2010, 3:20 pmtheobromophile says:
I’ve always thought that the Supreme Court should be viewed more like building a team than as picking individual all-stars for a Hall of Fame induction. You don’t try to make up a baseball team of twenty-five pitchers or a track team out of sprinters, but that seems to be how people view the Supreme Court.
Rather than have nine Justices, each of whom is well-versed in the plurality of the Supreme Court’s docket, it would make more sense (IMHO) to have Justices with a range of experience. That way, between all of them, they could hit the supermajority, not just the plurality or the bread-and-butter, of the docket. Furthermore, why not have Justices with non-legal experience (i.e. those who were career-changers when they went to law school)?
May 27, 2010, 3:25 pmTim says:
I’m starting to think that putting someone on the Court that you expect to disagree with “much of the time” is seriously problematic. Sure, there are disputed things in our law…but if we cannot find at least some common ground, I see little purpose in putting that person on the Court. Conflict on things that are so important that they can be viewed as essential and fundamental to a free society are probably not good people to be on the Court, regardless of other qualifications.
I have no confidence in Obama to appoint anyone but an ideologue like himself to the Court, and so I have serious doubts about Kagan.
None of which matter, because this senate will rubber stamp her right onto the Court.
May 27, 2010, 3:29 pmdirc says:
Yes. Wise Latinas vote differently than “white males who have not lived that life”, at least according to one current Justice, and who would know better than she?
May 27, 2010, 3:36 pmdcp says:
People frequently point to Rehnquist in these debates but wasn’t his nomination sort of strange? I’m not a court watcher and that was long before my time but I seem to remember that he was the 4th or 5th choice for the open slot. Nixon famously bumbled his name numerous times during the selection process.
Contrast this with Kagan who seems to be Obama’s chosen preference from before he entered office.
Not sure if it really matters, but it seems like previous nominations who lacked relevant judicial or practical experience were made for reasons of political expediency whereas Kagan seems more of an ideological rubber stamp and personal friend. Perhaps that should factor somewhat into the analysis of her qualifications.
May 27, 2010, 3:36 pmBruce Hayden says:
It bothers me, not being one of those elites. It isn’t that they are that much smarter than everyone else, because there are plenty of people just as smart who didn’t graduate from those two law schools.
I also have a problem with such a narrow world view. A lot has been made of Justice Sotomayor’s Wise Latina view of the world. But I would suggest that she would have had a much wider and more different view if she had graduated from, for example, a state law school.
May 27, 2010, 3:40 pmtheobromophile says:
Kamal: I think that your lack of understanding comes from jumping straight from “elite” to “superior intellectual status”.
Brilliant is good. I think that Prof. Adler is objecting to the fact that all of these people came from the same schools (as if brilliant legal minds do not go to Yale or Harvard Law, on occasion), often came from the same part of the country, and did the same thing post-graduation (i.e. worked in the government, academia, or white-shoe law firms). Why not a totally brilliant University of Texas or UVA grad who was a scrappy lawyer for Greenpeace or the public defender’s office?
May 27, 2010, 3:53 pmCarolina says:
That’s my concern.
The Supreme Court is not some sort of special constitutional court that only hears esoteric first amendment cases. It’s the court of last resort for all federal litigation in the country, much of which might seem relatively mundane on paper but means an awful lot to the people involved in it and sometimes to lots of other people as well.
Lack of judicial experience is not a big deal to me. Lack of ANY sort of real world legal experience (other than a short stint as a cog in W&C’s litigation factory) is a significant issue.
May 27, 2010, 3:53 pmBob White says:
Tim:
This is what happens when you have a Democratic president and 59 Democratic senators. As a non-Democrat, anybody they acceptable to that group of 60 is probably someone with whom Adler will disagree with much of the time on the truly contested matters that come before the court.
Were Adler a Republican senator, I assume he’d vote against her nomination, but he’s not, I’m not, and I assume you’re not. So, he’s asking a different question: does Elena Kagan have, and to the extent I can’t be sure is she likely to have, the qualifications I consider necessary for all Supreme Court justices?
Personally, while I appreciate that there are people truly, sincerely, and deeply interested in the question, I have to my satisfaction decided that, barring any particularly unpleasant surprises at the confirmation hearings, she likely meets and exceeds the qualifications I consider necessary for all Supreme Court justices and that, subject to the Constraint of 60, is about as good a nominee as I can expect.
May 27, 2010, 4:00 pmSteve says:
[Is there any evidence that differing experience leads to different votes on the Court?]
Yes, it’s pretty well-established that Justice O’Connor’s experience as a legislator was an important part of why she often sought consensus and middle ground as a Justice.
May 27, 2010, 4:03 pmMark Field says:
Yes.
Again yes.
May 27, 2010, 4:08 pmCJColucci says:
Sorry for the double-post earlier, which may be gone by the time you read this.
May 27, 2010, 4:25 pmI am lukewarm about Kagan. She certainly meets any real-world standards of qualifications for a Supreme Court Justice. The “no judicial experience” argument is silly. I share the concern of many here that the current Court is made up of people with all-too-similar professional experience — Ivy law schools and appellate judging. I’m glad that Kagan’s experience is different, but it’s not really different enough to suit me. I’d like to see far more variety of experience than there now is, or will be with Kagan.
Clifford Janowski says:
This administration, I think more than the last and with less reason some years past 9/11, is too opaque and Executive authority drunk.
We could use a more enumerated powers oriented kind of Justice, just now, for clarity of process and balance to ensure citizens’ rights. Instead, we’re going to get Obama’s liberal beard.
May 27, 2010, 4:33 pmSteve says:
I don’t think the three years someone spends in Cambridge or Austin or Palo Alto or wherever are necessarily the most formative years of one’s life. I think it’s more relevant that Kagan comes from an affluent upbringing, although I can’t recall if she’s fourth-generation Harvard or anything like that.
Just looking at the current Supreme Court, and apologies if I’m misremembering any details of the biographies, you have Clarence Thomas who was born in a dirt-poor small town and grew up with his middle-class grandfather in Savannah. You have Sonia Sotomayor who was raised by a single mom in public housing in the Bronx. I’d be hard-pressed to say either of them is just another coastal elite, or that the Supreme Court is utterly homogenous, simply because they both went to Yale.
Mind you, I can’t understand how during the last nomination it was unthinkable (not to mention bigoted and racist) to suggest a judge might look at a case differently because of their different life experiences, but now it’s really important that the Supreme Court Justices come from a variety of backgrounds.
May 27, 2010, 4:35 pmklp85 says:
OT, but has anyone (else) heard former Justice Souter’s speech at Harvard today? It dealt mostly with constitutional interpretation and the Court’s role. Although I don’t have 2 grand to pay for an answer, it would be interesting to hear a Conspirator’s thoughts.
May 27, 2010, 4:56 pmAnderson says:
Is Scalia’s quasi-endorsement of Kagan a clue that he doesn’t believe she’s gay?
If Scalia’s known to have any gay friends, please enlighten me, as that would surprise me about someone who complains of “the homosexual agenda” (opera fan tho he be).
May 27, 2010, 5:17 pmAnderson says:
Although I don’t have 2 grand to pay for an answer, it would be interesting to hear a Conspirator’s thoughts.
Looking fwd to DB’s next bleg ….
– I saw an AP item on Souter, but haven’t seen the text of the speech.
May 27, 2010, 5:20 pmohwilleke says:
“Her . . . work is also focused on a relatively small range of issues with little relevance for much of the Court’s docket.”
This proves to much. It is uniformly true of all people appointed to be judges at every level, in the United States, where judging is a second career for former lawyers, rather than a separate career track right out of law school as it is in much of the world.
Most judges have a background in criminal law as lawyers, either as prosecutors or criminal defense lawyers, and have little or no experience in non-criminal law, which makes up about half of the SCOTUS docket.
Lawyers with background as criminal lawyers in federal court often have little exposure to death penalty cases which make up much of the U.S. Supreme Court docket. Lawyers with background as criminal lawyers in state court rarely have much familiarity with immigration crimes and white collar crimes that make a large share of the federal non-death penalty docket.
The small town general practice lawyers whose experience most closely matches the overall court docket, with a mix of criminal, domestic relations, personal injury and debtor-creditor law tend to be at the low end of the legal profession hierarchy with little chance of appointment to high judicial or executive branch office, for better or for worse, because their clients are the individuals and small businesses whose affairs make up most of the law.
As a result, these individuals have little or no experience with the “high end” disputes that make up a significant share of the docket in the federal appellate courts. Yet, lawyers who handle “high end” disputes of the type that the Supreme Court most often handles are almost invariably highly specialized and almost never handle the run of the mill criminal cases that make up a large share of the SCOTUS docket.
Even state court judges deal with a very different range of issues than the U.S. Supreme Court. They handle many misdemeanors or minor felonies, many divorces, and lots of plain vanilla contract, eviction, foreclosure and personal injury suits. But, state court judges encounter litigation of issues commonly coming before SCOTUS like federal constitutional rights, immigration, white collar crime, death penalty cases, Indian law, maritime law, anti-trust cases, intellectual property cases, federal tax cases, bankruptcy law cases, ERISA disputes, and the like, once in a blue moon, if ever.
The Solicitor General’s office is only of the only places in the country where a lawyer handles the full range of the SCOTUS docket and that, of course, is where Elana Kagan was until nominated, employed. The average tenure of a Solicitor General is less than four years.
Simply put, by the standard this post suggests, no one individual is ever qualified to be a U.S. Supreme Court justice except a federal appellate court judge (whose docket is most similar to the high court’s). But, the experience one gains as a federal appellate court judge had diminishing marginal utility to the U.S. Supreme Court as an institution.
May 27, 2010, 5:27 pmStelman says:
I am trying to figure out which Justice is a Northeastern elite? 30 Years ago NONE of them would qualify, except possibly Stevens (although much more to the west of the Northeast).
Now, perhaps, Breyer qualifies (although from Cali), and Roberts pedigree is almost white shoe (although he’s from humble Indiana).
May 27, 2010, 5:31 pmohwilleke says:
It also bears noting that Justice Scalia is a distinctly non-neutral position in commenting here. The odds that Kagan will not be confirmed given historical precedents, the political composition of the U.S. Senate, and the early press on her nomination, are vanishingly small. So, Kagan is exceedingly likely to be his colleague for decades to come. He has no interest in starting that relationship in a very exclusive and intense club off on the wrong foot.
His position is a little bit like that of a brother who has learned that a sibling who is obviously very much in love has announced an engagement that his parents appear to approve of for the most part. One can look to like, or take a huge gamble in mounting intense opposition that is likely to fail. Scalia’s tune would probably be very different were he an executive officer of the Federalist Society or Heritage Institute fellow instead of a future colleague of Ms. Kagan.
May 27, 2010, 5:36 pmtheobromophile says:
Glad that Mark Field and I agree on something that is not chocolate-related. :) (Not that there’s anything wrong with chocolate-based amicability, of course….)
May 27, 2010, 5:42 pmohwilleke says:
Not quite, but close. Almost all of the litigation in the U.S. Supreme Court arising from the state court system involves federal constitutional rights that constitutional law professors spend their careers teaching regardless of their particular legal specialty.
A meaningful share of federal litigation that reaches the U.S. Supreme Court involves public law and procedural questions. Administrative law is the intersection of these two fields, and law professors invariably focus on federal rather than state administrative law questions.
The issues in habeas corpus cases, that make up the largest share of the docket are analytically very similar to administrative law cases, because they involve questions of how much to defer to other governmental actors in the context of an elaborate statutory scheme, and also almost always involve federal constitutional rights.
Certainly, U.S. Supreme Court cases are routinely esoteric. Long standing legal issues that must be definitely resolved in day to day litigation are overwhelmingly settled law. The U.S. Supreme Court simply does not have the capacity to review routine issues except in rare cases where there are circuit splits and those splits are usually over esoteric fine hairs. SCOTUS only gets into routine litigation issues when there is a major revolution in the law in progress (a la the Warren Court) and nobody expects that anytime soon because there is still a conservative majority on the court.
At any rate, substantive law knowledge is in many respects less important on the U.S. Surpeme Court than on any other court. No other court decides so few cases on the merits, with such high quality briefing (often with first rate amicus briefs as well as briefs from the parties), and such first rate legal research support (the very best and the brightest law clerks in the nation).
Also, unlike every other court in the country, no precedent is binding on the U.S. Supreme Court which has the authority to overrule any lower court and its own prior rulings, and not infrequently does so. That counts as pretty special in my book.
May 27, 2010, 5:49 pm1040 says:
Hans, too afraid to post with your own name??? Come now, do you really need to add sock puppetry to your repertoire?
May 27, 2010, 6:55 pmEllen S says:
Also, the reason that Kagan does not have judicial experience is that Republican Senators refused to confirm her in 1999. If she had been confirmed, she would have had extensive judicial experience.
May 27, 2010, 7:04 pmThe fact is that because Bush was President, the appellate judges nominated and confirmed from 2000-2008 were not likely Obama nominees to the Supreme Court, and Obama has only appointed a handful of appellate judges so far, so the number of people who around 50 who are currently serving as federal appellate judges in the pool of likely candidates is quite small.
The fact that the Republicans blocked her nomination to the D.C. Circuit on the spurious ground that no new judges were needed should not work against. (Once Bush was elected, new judges were needed . . .)
Mark Field says:
If Kagan were to testify to her love of chocolate, that might cause me to view her candidacy more favorably. Perhaps one of the Conspirators can slip that question to a Senator. Hmm. Let’s see, which one might have some influence….
May 27, 2010, 7:36 pmTim says:
I agree totally. We don’t have to like it, though. And we can expect better from our government.
May 27, 2010, 7:41 pmDavid M. Nieporent says:
Not to speak for Prof. Adler, but he has said many times that he believes that the president’s choice is entitled to deference, and that he would vote for Kagan if he were a senator.
May 27, 2010, 8:21 pmklp85 says:
Anderson,
The speech discussed the criticism that the Court is “making law” from the bench. He basically argued that (1) outside of certain cases (e.g., age qualifications for senators), the text of the Constitutional leaves room for judges to work through some issues (e.g., “reasonable” searches and seizures, “due process,” etc.); (2) sometimes constitutional clauses are in tension and so passages shouldn’t be read in isolation (e.g., in the Pentagon Papers case, he said that Black’s Free Speech position was in tension with the government’s responsibility to protect the U.S. from enemies, and so, while the case was decided on different grounds, [according to Souter,] Black’s absolutist position was probably wrong and the government’s interests needed to be taken into consideration); and (3) perspectives/subjective aspects of the law may change over time (e.g., the weight of the badge of inferiority argument in Plessy and Brown). These arguments have been made before (they’re basically Balkin’s version of originalism, if I understand it correctly), but that here they were coming from a (retired) justice, though not from one that (I suspect) most here would necessarily give much credibility on the matter.
On a related note, I also found funny how Souter’s demeanor/temperament and legacy as a justice were described, given many of the opinions of him that I’ve read elsewhere. But what else could have been expected given the circumstances?
May 27, 2010, 8:31 pmColin says:
I mean, Christ. Pre-Court Byron White was best known for PLAYING FOOTBALL.
Between leaving for university at 18 and being, White spent almost as many years in school, on the field, and in military service than he did practicing law (7 in school, 3 in the NFL, and 4 in the Navy by my count).
While the Whizzer was a fine halfback, this seems a less than ideal precursor to the SCOTUS.
And he did fine in my book.
May 27, 2010, 9:03 pmjames says:
Hans Bader must have a crawler running this site regularly so he can blog-flog his weak garbage.
May 27, 2010, 9:30 pmOrenWithAnE says:
Weaker still now that JHA posted about the conspicuous lack of any Federal court handing out LWoP for crimes committed as a juvenile.
Maybe next week he’ll move on to a new complaint.
May 27, 2010, 10:05 pmAnderson says:
It also bears noting that Justice Scalia is a distinctly non-neutral position in commenting here.
True, but he didn’t have to say anything.
.. Klp, thanks for the summary. Despite all the Stevens love we’ve been hearing lately, Souter is my favorite of the justices in my lifetime.
May 28, 2010, 8:04 amSCOTUSblog » Friday round-up says:
[...] comments earlier this week (see yesterday’s round-up for more coverage), Jonathan Adler at the Volokh Conspiracy agrees that Kagan is qualified to serve on the Court; the “bigger problem,” Adler suggests is [...]
May 28, 2010, 10:16 amBob White says:
David M. Nieporent wrote:
Thank you for correcting me. I remembered that Prof. Adler was generally supportive of a president’s right to nominate whomever he chooses, but had forgotten that included voting for Kagan. I’m afraid I may have had him confused with Prof. Somin, who while generally supportive of deference takes a different view of the Supreme Court, or perhaps I’m merely imputing my personal views to people more famous in hopes they’ll gain greater respectability.
May 28, 2010, 10:37 amFriday round-up – theConstitutional.org says:
[...] comments earlier this week (see yesterday’s round-up for more coverage), Jonathan Adler at the Volokh Conspiracy agrees that Kagan is qualified to serve on the Court; the “bigger problem,” Adler suggests is [...]
May 29, 2010, 5:10 amCC Cove says:
I don’t know how you define “affluent upbringing”, Steve, but “comfortably middle class” seems a more apt description of Ms. Kagan’s home environment; so far as I can tell, her parents were the first generation in their respective families to have attended college.
Both of Ms. Kagan’s parents were the children of immigrants: her paternal grandfather came to this country from Poland, her mother’s parents were Ukranian. Her father, born in 1927, grew up in the Flatbush section of Brooklyn, definitely not an enclave of NYC’s wealthy elite at the time. Robert Kagan graduated from Penn State after WW II and received his law degree from Yale Law School, but never was a senior partner in a hotshot law firm; rather, he launched his own small firm. Her mother was a school teacher. The couple raised their 3 children in a non-ritzy apartment on Manhattan’s Upper West Side at W. 75th Street and West End Avenue, which was not as tony an address back in the 60′s and 70′s as it is now.
So her family’s economic status seems most similar to that of Justices Scalia, Breyer, and Alito. Chief Justice Roberts and Justice Kennedy are the Justices who grew up in the most economically privileged households.
June 2, 2010, 1:14 am