What does Elena Kagan have in common with William Rehnquist, Earl Warren, Louis Brandeis, and Roger Taney? None of them had judicial experience prior to becoming Supreme Court Justices. Indeed, 40 of the court’s 111 justices had no prior judicial experience.
Being an appellate court judge provides a handy record for Senators to inspect. Justice Alito came to court after a long stint on the 3rd Circuit. His views on most issues were pretty clear. Chief Justice Roberts, on the other hand, spent so little time on the bench that his record was devoid of any meaningful cases.
Finally, is Kagan another Harriet Miers? In a word, No. Miers’ was a pioneer in many ways and her legal career was nothing to be ashamed of. Miers’ nomination was brought down by conservative opposition. Activists feared that she was not sufficiently anti-Roe to appoint to a lifetime position. They submarined her nomination to force the President to appoint a more reliable conservative. Cue Sam Alito with an extensive (conservative) record on the federal court of appeals.
It also matters what kind of experience a person brings to the Supreme Court. Kagan clerked for a Supreme Court Justice, taught law at the University of Chicago, held significant positions for Joe Biden and Bill Clinton and served as Harvard Law School Dean before becoming Solicitor General of the United States.
The bottom line: you can be a great justice without being a judge.
May 13, 2010 9,019 Comments