Should experience as a judge be required of U.S. Supreme Court nominees?
President Obama’s choice to replace retiring Justice John Paul Stevens, Solicitor General Elena Kagan, has never wielded a judicial gavel. If confirmed, she would be the only one of nine justices without such a background.
In the interest of diversity alone, we’ll call it more of a strength than a weakness.
The Supreme Court has a rich history of justices who had no prior judicial experience — more than a third of the 108 men and three women who have served there came without it. Two justices nominated by Richard M. Nixon, former Chief Justice William H. Rehnquist and Lewis F. Powell Jr., were the most recent.
A recent poll, however, showed 70 percent of Americans view experience on the bench as a plus for Supreme Court nominee. Republican senators figure to make it an issue during the confirmation process, but Kagan’s background may cut both ways: Early reaction suggests liberals are nervous about the lack of a paper trail that might divine how Kagan would rule on hot-button issues like abortion.
(As if history shows such things are easy to predict. Stevens, considered the leader of the current court’s liberal wing, was nominated by Republican Gerald R. Ford. Another recently retired liberal justice, David Souter, was picked by Republican George H.W. Bush.)
The legal experience that makes for an effective justice can be gained in different ways. Kagan’s has come from her current job, where she serves as the nation’s chief litigator before the Supreme Court, and as an academician, most prominently as dean of the Harvard Law School — where she gained a reputation for fair-mindedness by hiring professors of widely varied ideologies.
She also served as associated White House counsel under Bill Clinton, and as a law clerk for U.S. Supreme Court Justice Thurgood Marshall before entering private practice.
None of that says whether or not she should be confirmed. That’s what Senate hearings are supposed to accomplish. But it’s important to see that vetting process for what it has become: a political exercise that will ingratiate, exaggerate and, at times, infuriate. The fact that an election is approaching will only make the political theater more dramatic.
Given that Kagan would replace a liberal, though, leaving the court’s current ideological balance intact, her confirmation seems likely — barring unforeseen revelations. The real battle will come if Obama gets to nominate a successor to one of the court’s conservatives.
If that happens, C-SPAN won’t be just for insomniacs anymore.