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May 16th, 2010

Is Prior Judicial Experience Necessary?

Written by Nathan Tucker

This past Monday President Obama nominated Solicitor General Elena Kagan to replace retiring Justice John Paul Stevens on the United States Supreme Court. As Solicitor General, a position she has held since being confirmed by the Senate on a 61-31 vote in March 2009, Kagan serves as the federal government’s primary advocate before the Supreme Court. Previously, Kagan served as dean of Harvard Law School, a professor at the University of Chicago Law School, and as an attorney in the Clinton Department of Justice.

Despite her pedigree, the one thing Kagan has never been is a judge at either the state or local level. Ironically, Kagan herself, in a law review article entitled Confirmation Messes, Old and New, appeared to indicate that prior judicial experience was necessary to ensure that a nominee have the “previous accomplishments” and “training” to not just “handle but to master the ‘craft’ aspects of being a judge.”

Every single member of the current Court, including outgoing Justice Stevens, has had prior experience as a federal appellate judge, a job requirement that recent polls have found that 70 percent of the public say they want in a nominee. Justices William H. Rehnquist and Lewis F. Powell, Jr. were the last justices nominated who had no prior judicial service.

This “requirement” of prior judicial experience, however, is a modern development of the past quarter century. Historically, most Supreme Court nominees were private attorneys, high-ranking administration officials, and/or politicians without prior judicial experience. Notable examples just among chief justices include Earl Warren, Charles Evan Hughes, Salmon Chase, Roger Taney, and John Marshall.

Though prior judicial experience is not necessary to make someone a Supreme Court justice, it is increasingly necessary to provide a paper trail by which the Senate, and the American people, can judge a nominee’s understanding of the Constitution. The real requirement is not whether a nominee has previously donned a black robe, but whether he or she has demonstrated in past statements, whether on or off the bench, a proper understanding of the role of judges in our constitutional republic.

This, and not prior judicial experience, is the one qualification for the Court that Kagan lacks, and because of it, as Senator Grassley noted, “[t]he Judiciary Committee must take time to ensure that the nominee will be true to the Constitution and apply the law, not personal politics, feelings or preferences. With no judicial experience, it becomes even more important that we ask thorough questions to determine that Ms. Kagan truly understands the constitutional role of a Supreme Court justice.”

Kagan herself understands that, in this battle over the meaning of the Constitution and judicial activism, nothing is off limits. In her law review article discussing confirmation hearings, she astutely writes:

The problem is not that the Senate focused too much on a nominee’s legal views, but that it did so far too little.…The kind of inquiry that would contribute most to understanding and evaluating a nomination is … discussion first, of the nominee’s broad judicial philosophy and, second, of her views on particular constitutional issues.…

Hence the second aspect of the inquiry: the insistence on seeing how theory works in practice by evoking a nominee’s comments on particular issues—involving privacy rights, free speech, race and gender discrimination, and so forth—that the Court regularly faces.

[As for claims that such inquiry would compromise “judicial independence”:] The judicial independence that we should focus on protecting resides primarily in the inability of political officials, once having placed a person on the court, to interfere with what she does there. That seems a fair amount of independence for any branch of government.

[W]hat is worse even than the hearings themselves is … the evident belief of many senators that serious substantive inquiry of nominees is usually not only inessential, but illegitimate.

Kagan may enter the confirmation hearings with a clean slate free of any paper trail, but senators must not let her leave the same way she came in. By her own admission, everything is fair game, and it is essential and perfectly legitimate for senators to learn her position on every issue that may come before the court.

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About the Author

Nathan W. Tucker
Nathan W. Tucker is a Davenport attorney and author of We The People: The Only Cure to Judicial Activism. He can be contacted at [email protected]

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