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Attorneys weigh in on judging Supreme Court pick

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By Julie Muhlstein, Herald Columnist
Early last week, I did a Google search of “Elena Kagan” and “personal life.” I was curious, that’s all.
In a hurry before work, I had watched President Barack Obama’s Monday announcement that Kagan is his latest U.S. Supreme Court pick. She’s 50, not very tall, and her current job title is U.S. solicitor general. That’s about all I learned from the televised White House announcement.
So I went looking, and quickly learned that Kagan is childless and has never married.
Google turned up blogs and articles asking these questions: “Elena Kagan: Husband or Married?” and “Elena Kagan’s Personal Life: Does It Matter?” By Friday, Washington Post writer Karen Tumulty had conducted an online chat under the headline, “Is Elena Kagan’s sexual orientation any of our business?”
Whether it’s our business or not, questions about the former Harvard Law School dean’s life outside of work are being asked. With high court opinions touching so many aspects of our lives — educational equality, gun rights, reproductive freedom — it seems fair that we learn more than a list of professional achievements.
Is personal life germane to the job? Does a spouse or a parent make a better Supreme Court justice?
“Do I personally care? No, I don’t,” said Janice Ellis, the former Snohomish County prosecutor who’s now prosecuting attorney for the Tulalip Tribes. Ellis, who has juggled a high-powered career with raising children, looks at the question in terms of employment law.
“We try to hire a person based on qualifications, temperament, skills and abilities,” she said. “When we entrust someone with the vast judgment of the United States Supreme Court, we want to know what informs their judgment. If a person chooses to share information about their background, that’s welcome.
“Should we require it? I think people should be able to maintain some boundaries in their life,” Ellis said.
Judge Kathryn Trumbull, who retired from the Snohomish County Superior Court bench in 1999 but still serves part-time, said marital status or a family situation doesn’t necessarily translate to a certain point of view.
“I think it depends very much on the individual, whether they are aware of what goes on around them as far as other people are concerned,” said Trumbull, 72, of Everett. She recalls being concerned when David Souter was nominated to the high court. Justice Souter, who retired last year, never married and has lived a spare, solitary existence.
“It turned out he had a wonderfully broad perspective,” Trumbull said of Souter, who was appointed to the high court by Republican President George H.W. Bush but who often sided with the more liberal justices.
Trumbull is happy that the time when women were a rarity in the legal world is now past. “I hoped it would have happened sooner,” she said.
At the University of Washington School of Law, 34-year-old Kathryn Watts is an assistant professor who teaches constitutional law, administrative law and Supreme Court decision-making. A married mother of two small children, she also worked as a clerk in 2002 and 2003 for Supreme Court Justice John Paul Stevens. If Kagan is confirmed by the Senate, she’ll replace Stevens, who is retiring.
Like Ellis, Watts doesn’t believe that a justice’s personal life matters, in and of itself. “My own view, it’s not relevant to the inquiry of who’s going to be a good justice,” Watts said. “I certainly think justices bring their own experiences and backgrounds to the table. Justices are not computers. Their own views creep into how they interpret ambiguity, given that they are human,” she said.
Watts said that retired Supreme Court Justice Sandra Day O’Connor has written about “women and judging.”
“She talks about being asked whether it makes a difference, whether women think about issues differently than men do,” Watts said. “Her takeaway is that no, being a woman doesn’t impact how they decide a case.” For Watts, it’s important that the nation’s top court include women as role models for young women and girls. “That’s not just in legal work, but for our country as a whole,” she said.
As a clerk for a Supreme Court justice, Watts said she worked about 12 hours most weekdays, and often came to work on weekends, too. She was newly married then, but didn’t yet have children.
“We all have to make family choices,” she said. “No doubt, there are days that are harder than others.”
Watts looks past all the chatter about Kagan’s personal life.
“What is the goal? Is the goal to pick somebody that you know exactly how they’re going to rule?” she said. “The goal is picking the best legal mind in the country.”

Julie Muhlstein: 425-339-3460,
Story tags » EverettTulalip

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