Legal Commentary

Scalia on Kagan?s Lack of Judicial Experience

By Jonathan H. Adler

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.

Full post as published by The Volokh Conspiracy on May 27, 2010 (boomark / email).