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Should Kagan's Lack Of Judicial Experience Matter?

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Should Kagan's Lack Of Judicial Experience Matter?

Should Kagan's Lack Of Judicial Experience Matter?

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This is MORNING EDITION from NPR News. I'm Renee Montagne.


And I'm Lynn Neary.

Supreme Court nominee Elena Kagan starts making the rounds on Capitol Hill today. These one-on-one meetings are supposed to give the senators and the nominee a chance to talk on an informal basis. In public, only one Republican senator so far has said he will oppose her nomination.

But many more Republicans are expressing reservations. And they tend to point to Kagan's lack of judicial experience. As NPR legal affairs correspondent Nina Totenberg reports, it's only recently that judicial experience has been deemed an important qualification for the Supreme Court.

NINA TOTENBERG: Republican Senate Leader Mitch McConnell raised Kagan's lack of judicial experience this way.

Senator MITCH MCCONNELL (Republican, Kentucky): The American people instinctively know that a lifetime position on the Supreme Court does not lend itself to on-the-job training.

TOTENBERG: Texas Republican 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.

Senator JOHN CORNYN (Republican, Texas): We have someone who has obviously a stellar academic background, but someone with no real-world experience and someone with no judicial experience.

TOTENBERG: 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.

Constitutional law professor and Supreme Court advocate Walter Dellinger.

POST-BROADCAST CORRECTION: 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.

Professor WALTER DELLINGER (Supreme Court advocate): The court that decided´┐ŻBrown v. Board of Education´┐Żin 1954 did not have a single justice who had been a judge. It had three former attorneys general, three former U.S. senators, a former governor of California, the early chairman of the Securities and Exchange Commission.

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

Prof. DELLINGER: And the ranks of those who have not been judges before include some of our most illustrious Supreme Court justices. 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.

TOTENBERG: Certainly, the list includes many of the most important justices, some conservative and 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; Joseph Story, considered, along with Marshall, one of the formative figures in early American jurisprudence; 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; Justice Louis Brandeis, a social crusader whose expansive view of free speech rights and privacy rights prevail today.

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

Prof. DELLINGER: People who have been judges for a long time develop very narrow technical skills, which are quite suitable for lower court positions. 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.

TOTENBERG: That, at least, is a good theory. But one of the reasons presidents in the last 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's a lot harder to make that kind of a determination for someone who's never been a judge.

Nina Totenberg, NPR News, Washington.

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