Kagan's Lack of Judicial Experience Debated

She hasn’t judged, which leads to the question, how will she be judged?

One of the major points of debate surfacing over President Obama’s choice of Solicitor General Elena Kagan to the Supreme Court involves her lack of judicial experience. If confirmed, she would be the first justice to sit without prior judicial experience in four decades. She has served as Harvard Law School dean and in each branch of the federal government.

Whether this issue matters depends who you listen to, according to a National Public Radio report. Some conservative groups, for example, are seizing on the issue to attack Kagan’s appointment.

But some conservative legal scholars don’t fret about the issue, pointing out that Chief Justice William Rehnquist was elevated to the bench without prior judicial experience.

“I don’t believe that previous judicial experience is a necessary qualification for service on the court,” said Rick Garnett, a University of Notre Dame Law School professor who clerked for Justice Rehnquist. “There are plenty of ways to develop the kind of chops needed to do the hard work of a judge.”

The answer to the experience question also depends when you ask it, according to an intriguing Associated Press article. The article documents different viewpoints offered by some Republican senators regarding Kagan’s lack of bench experience, as opposed to President George W. Bush’s nominee Harriet Miers in 2005.

“Ms. Kagan is … a surprising choice because she lacks judicial experience,” Sen. John Cornyn of Texas said. “Most Americans believe that prior judicial experience is a necessary credential for a Supreme Court Justice.”

In 2005, Cornyn remarked that¬† “40 percent of the men and women who have served as Supreme Court justices” had no judicial experience. “One reason I felt so strongly about Harriet Miers’ qualifications is I thought she would fill some very important gaps in the Supreme Court,” Cornyn said. “Because right now you have people who’ve been federal judges, circuit judges most of their lives or academicians.”

At the state level,  there are 19 sitting state Chief Justices who joined their high courts without prior judicial experience, according to research from the National Center for State Courts, a Justice at Stake partner. Their research also shows that 85 percent of state courts of last resort include at least one member who came to the court without prior judicial experience.

Meanwhile the American Bar Association, another JAS partner, said in a statement it will begin evaluating Kagan.

In other news coverage, CQ Politics reported that Senate Judiciary Committee Republicans were revealing little sentiment to mount a filibuster against Kagan’s nomination. Republican Sen. Orrin Hatch of Utah said she is likely to win confirmation, according to a Bloomberg article.

Her nomination is turning into a flash point in this year’s midterm campaigns for Congress, a New York Times article said. Another Times article looked at the bloc of three high court justices who grew up in New York; Kagan, if confirmed, would be a fourth.

A Washington Post article said the White House was scrambling to respond to concerns raised by some civil rights about her track record for hiring when Kagan was dean at Harvard Law School.

To learn more about Kagan, visit Gavel Grab or Justice at Stake’s “Replacing Justice Stevens” page.

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