Elana Kagan Lacks Experience

by Professor Byron L. Warnken on May 11, 2010

President Obama has nominated Elana Kagan to be the 112th Supreme Court Justice.  I am a liberal and a great supporter of the President.  Thus, if I were a Senator, I would vote to confirm Ms. Kagan in a heartbeat.  Moreover, I have been a law professor for 33 years and I champion an individual with her very strong academic credentials.  Nonetheless, I have concerns because Elana Kagan has absolutely no judicial experience and minimal, if any, litigation experience.

If I were the President, I would nominate someone with both judicial experience and litigation experience.  I would prefer that the judicial experience have been gained serving on a federal Circuit Court.  Those courts hear appeals from federal trial courts.  The Supreme Court is not an ideal place to receive “on the job” training.  The experience of being a federal appellate judge is the closest experience to that of being a Supreme Court Justice.  Since 2006, for the first time in history, all nine Supreme Court justices are individuals who served on a federal Circuit Court, and the current nine justices had 83 years of experience on a federal appellate court before ascending to the nation’s highest court.

Not only does Ms. Kagan lack judicial experience, she has minimal, if any, litigation experience.  The civil and criminal litigation arenas produce the cases that go to federal and state appellate courts.  Although I have practiced law for the last 30 years, most legal academics (except clinical law professors) usually lack meaningful litigation experience.  The typical profile of a law professor is as follows:  highly ranked law school, law review, judicial clerkship, three-year stint as a young associate in a big law firm, law professor.

That is the career path of Elana Kagan.  In 1981, she graduated summa cum laude from Princeton University.  After two years at Oxford, she went to Harvard Law School, graduating magna cum laude in 1986, where she served on the Law Review editorial board.  She clerked for Judge Abner Mikva on the United States Court of Appeals for the District of Columbia Circuit and for Justice Thurgood Marshal on the Supreme Court of the United States.  She spent three years as an associate at Williams & Connolly in Washington. D.C.  (A young associate at a huge D.C. law firm would never first-chair anything and would be, in essence, a glorified law clerk.)  In 1991, she became a law professor at the University of Chicago, where she was tenured in 1995.  She then became Associate Counsel to President Clinton.  In 1999, she became a law professor at Harvard Law School.  In 2003, she became the first female Dean of Harvard Law School.  In January 2009, President Obama named her to be the first female Solicitor General.  The Office of the Solicitor General argues the position of the United States in the Supreme Court.

Please do not misunderstand me.  Although I have never met Elana Kagan, she is obviously an extremely bright and extremely accomplished person.  I would vote to confirm her in a second.  My only point is that she will serve for 30 or 40 years on the nation’s highest court, and she has absolutely no experience as a judge and minimal, if any, experience as a litigator.  She will definitely be confirmed and, I suppose, will become an excellent jurist.  Sadly, my legitimate concerns will turn into ammunition for the Republicans.

Comments on this entry are closed.

Previous post:

Next post: