Should Kagan's Lack Of Judicial Experience Matter?

Supreme Court nominee Elena Kagan's lack of judicial experience is front and center as an issue as she starts meeting with senators Wednesday.

Historically, judicial experience has not been deemed a major qualification for service on the U.S. Supreme Court, but Republicans have been highlighting Kagan's lack of it this week.

U.S. Senate Republican Leader Mitch McConnell, in a floor speech, declared: "The American people instinctively know that a lifetime position on the Supreme Court does not lend itself to on-the-job training."

Texas Republican Sen. John Cornyn, in a statement, said Kagan had spent her "entire professional career in Harvard Square, [Chicago's] Hyde Park and the D.C. Beltway."

"We have someone who has obviously a stellar academic background, but someone with no real-world experience and someone with no judicial experience," Cornyn said.

Judicial Experience

The current Supreme Court is composed of men and women who all served previously on the lower federal appeals courts. But in historical terms, this is the first time the court has had such a uniform professional pedigree.

"The court that decided Brown v. Board of Education in 1954 did not have a single justice who had been a judge," noted Walter Dellinger, a constitutional law professor and Supreme Court advocate. "It had three former attorneys general, three former U.S. senators, a former governor of California [and] an early chairman of the Securities and Exchange Commission."

In fact, as Dellinger observes, of the 111 justices who have served, 40 had no prior judicial experience.

"The ranks of those who have not been judges before include some of our most illustrious Supreme Court justices," he said. "I think, in fact, if you compare the justices who have not been judges, they stand out as a more distinguished group in their work on the Supreme Court than those who had previously been judges."

'Narrow Technical Skills'

Certainly, the list includes many of the most important justices, some conservative, some liberal. Among them, Chief Justice John Marshall, widely credited with establishing the judiciary as a genuinely co-equal branch of government; Chief Justice Earl Warren, who led the court in a period of expanding individual and civil rights; Chief Justice William Rehnquist, who led the court in reversing that direction; Justice Joseph Story, considered, along with Justice Marshall, to be one of the formative figures in early American jurisprudence; Justice Robert Jackson, a former attorney general whose Supreme Court opinions on the limits of executive power are routinely cited at Supreme Court confirmation hearings by the nominees and the senators; and Justices Louis Brandeis and Felix Frankfurter, to name just two more.

So why are the big names in American jurisprudence so often people who came to the court with no prior judicial experience?

"People who have been judges for a long time develop very narrow technical skills, which are quite suitable for lower court positions," Dellinger said. "But cases come to the Supreme Court precisely because there is no clear legal answer, and justices have to use judgment and all the tools of a Supreme Court justice to come up with a sense of the history and structure of the Constitution and what makes a workable legal rule."

That, at least, is a good theory. But one of the reasons presidents in the past 25 years have sought out lower court judges for promotion to the Supreme Court is that by looking at a lower court record, a president, or a senator for that matter, can get a reasonably good idea of what a nominee's views are. It is a lot harder to make that kind of a determination for someone who has never been a judge.

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Correction May 12, 2010

Constitutional law professor Walter Dellinger misspoke when he said the 1954 Supreme Court "did not have a single justice who had been a judge." In fact, Justice Sherman Minton, a former U.S. senator, had also served eight years on a federal appeals court.

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