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Eye on the News

James R. Copland
Kagan Flunks Her Own Test
Obama’s Supreme Court nominee lacks the experience she once held up as a standard.
11 May 2010

Elena Kagan, President Obama’s nominee to succeed John Paul Stevens on the Supreme Court, published some thoughts on the judicial confirmation process in 1995. Reviewing Stephen Carter’s 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 nominee’s 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,” Obama’s decision to nominate Kagan to the nation’s 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.

It’s true that Kagan’s 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 government’s 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 Kagan’s scholarship, UCLA law professor Eugene Volokh—whose views about such matters I trust more—makes an effective defense of it. But Kagan’s 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 nation’s top Supreme Court litigators. Each of these nominees easily met Kagan’s test of displaying “an ability not merely to handle but to master the ‘craft’ aspects of being a judge.”

While there’s 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, Kagan’s scholarship isn’t 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 Counsel’s 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: “It’s impossible to conclude that she would be the president’s nominee but for their close personal ties, her gender and her lack of a discernible paper trail.” But Miers’s record, and her interaction with senators after her nomination was announced, made conservatives worry about her ability to offer intellectual leadership on the Court. Kagan’s 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 Court’s left wing, we don’t know for sure what kind of justice she’ll 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’ views—that “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 she’ll offer some clues about her own views by engaging the senators in a “meaningful discussion of legal issues” at her confirmation hearings. But don’t hold your breath: Kagan’s 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 Kagan’s relevant resume is significantly thinner than other recently confirmed nominees to the Court—Sotomayor, Alito, Roberts, Breyer, and Ginsburg—I 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.

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