Elena Kagan, President Obamas nominee to succeed John Paul Stevens on the Supreme Court, published some thoughts on the judicial confirmation process in 1995. Reviewing Stephen Carters book The Confirmation Mess in The University of Chicago Law Review, Kagan asserted that prospective jurists should have demonstrated a talent for judging: It is an embarrassment that the President and Senate do not always insist, as a threshold requirement, that a nominees previous accomplishments evidence an ability not merely to handle but to master the craft aspects of being a judge. While not in my view an embarrassment, Obamas decision to nominate Kagan to the nations highest bench flunks her own test. If confirmed, Kagan would become the first justice in 38 years to join the Supreme Court without judicial experience.
Its true that Kagans current job as U.S. solicitor general is generally considered a prime training ground for the Supreme Court, since the job entails arguing the federal governments position before the Court. Such legal luminaries as Ted Olson, Ken Starr, Robert Bork, and Thurgood Marshall (whom Kagan served as a clerk) have previously held the job. But Kagan has been solicitor general for less than 14 months. Before that, she was dean of Harvard Law School, a job that is more administrative than intellectual. She spent about four years in the Clinton White House and eight as an academic scholar.
Though left-leaning law professor Paul Campos has attacked Kagans scholarship, UCLA law professor Eugene Volokhwhose views about such matters I trust moremakes an effective defense of it. But Kagans record is nevertheless a far cry from those of Sonia Sotomayor, Samuel Alito, Stephen Breyer, and Ruth Bader Ginsburg, each of whom had a lengthy, distinguished judicial career before being elevated to the Court. Nor does Kagan resemble John Roberts, who had a long track record as one of the nations top Supreme Court litigators. Each of these nominees easily met Kagans test of displaying an ability not merely to handle but to master the craft aspects of being a judge.
While theres certainly a case to be made for a nontraditional appointment to the court, is the legal academy really the best place to look? As Walter Olson has noted, what passes for unexceptional in the elite law schools can seem jarring to the average American. What brings distinction in the ivory tower is rarely suited to the federal bench. That said, Kagans scholarship isnt of the off-the-wall variety that we see so often in the academy. Her academic writings are, in fact, the main feature distinguishing her nomination from that of another nontraditional Supreme Court nominee, Harriet Miers, whom George W. Bush unsuccessfully tried to place on the high court.
Like Kagan, Miers was a proven administrator (she had successfully managed a large Texas law firm) with experience in the White House Counsels office (where Miers was actually one level higher on the totem pole than Kagan had been under Clinton). What could be said about Miers in 2005 applies today to Kagan: Its impossible to conclude that she would be the presidents nominee but for their close personal ties, her gender and her lack of a discernible paper trail. But Mierss record, and her interaction with senators after her nomination was announced, made conservatives worry about her ability to offer intellectual leadership on the Court. Kagans scholarly publications and performance as solicitor general should cause no such misgivings on the left, notwithstanding the hard-to-explain fulminations of some critics.
Though it would be surprising if Kagan wound up as anything but a solid member of the Courts left wing, we dont know for sure what kind of justice shell make because she has no record on the bench and her list of academic writings is deep but narrow. Back in 1995, Kagan also wrote that senators should work harder to extract judicial nominees viewsthat when the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce, and the Senate becomes incapable of either properly evaluating nominees or appropriately educating the public. Perhaps shell offer some clues about her own views by engaging the senators in a meaningful discussion of legal issues at her confirmation hearings. But dont hold your breath: Kagans confirmation process, much like her nomination, will likely fail to live up to her own lofty standards.
James R. Copland is the director of the Center for Legal Policy at the Manhattan Institute.
Update: I want to alert readers to the fact that though I still believe that Elena Kagans relevant resume is significantly thinner than other recently confirmed nominees to the CourtSotomayor, Alito, Roberts, Breyer, and GinsburgI now think it is unfair to say that she flunks her own standard, as expressed in her 2005 book review in the University of Chicago Law Review, given the full context of her article. For a fuller explanation, please see this post at PointofLaw.com.