IF KAGAN’S A NOVICE…. I think there are credible reasons to be skeptical of Elena Kagan’s Supreme Court nomination, but basing opposition on her lack of experience on the bench seems like a mistake.
There have been 111 Americans who’ve served on the high court, and more than a third had exactly zero judicial experience before being confirmed. Indeed, two of the last four chief justices had never donned a black robe until they took their place on the Supreme Court. If never having been a judge should be a disqualifier, it’d be a sharp departure from the way the system has always operated.
To drive the point home, Sam Stein compared Elena Kagan’s post-law-school resume to that of William Rehnquist, the former chief justice and conservative stalwart.
1952-1953: Clerk For Justice Robert Jackson
1953-1969: Private Practice in Phoenix, AZ
1969-1971: Assistant USAG, Office of Legal Counsel
…and here’s Kagan.
1986-87: Clerk for Judge Abner Mikva, U.S. Court of Appeals, D.C. Circuit
1987-88: Clerk for Justice Thurgood Marshall, U.S. Supreme Court
1989-91: Associate in Private Practice, Williams & Connolly
1991-97: Assistant Professor and Professor, University of Chicago Law School (1991-94 as assistant professor)
1995-96: Associate White House Counsel
1997-99: Deputy Assistant to the President, Domestic Policy Council
1999-01: Visiting Professor, Harvard Law School
2001-03: Professor, Harvard Law School
2003-09: Dean of Harvard Law School
2009-10: Solicitor General of the United States
A Democratic Senate confirmed Rehnquist with a 68-vote majority. If anyone raised concerns about his lack of judicial experience, the questions didn’t resonate.
To be sure, it appears some of those urging opposition to Kagan on this point aren’t especially sincere — they’re looking for an excuse and this seems like a convenient one. Sen. John Cornyn (R-Texas), for example, thought it was a great idea to have non-judges nominated to the Supreme Court, right up until yesterday.
Regardless, if the White House’s detractors are seriously going to pursue opposition to Kagan, they’ll have to look elsewhere for effective talking points.