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Apr. 8 2010 - 9:51 am | 1,932 views | 0 recommendations | 13 comments

Elena Kagan and the professionalized judiciary

The mounting speculation about Supreme Court Justice John Paul Stevens stepping down has triggered the requisite journalistic conjecture about whom President Obama might tap to fill the empty seat, with Solicitor General Elena Kagan topping some of the early lists. While Kagan’s unusual background could shake up the composition of the Court, it would also prove to a high hurdle during a confirmation fight. The gay news blog Queerty describes Kagan as “the lesbian former Harvard Law dean,” claiming she’s out but doesn’t discuss her sexuality with reporters. The blog goes on to make a great point about how that might fit into a potential nomination:

[M]ost notable about Kagan is not her sexuality, but her status: While all the Supreme Court’s sitting justices have been judges, Kagan has never held a bench seat.

It’s been this way for decades. The Senate hasn’t confirmed a Supreme Court justice who lacked judicial experience since 1971, when it approved the nomination of a 47-year-old lawyer from Nixon’s Justice Department named William Rehnquist. Legends like Chief Justice Earl Warren (politician) and Justice Louis Brandeis (crusading lawyer) never sat on the bench before joining the Court. But that sort of diversity of backgrounds is long gone. With the elevation of Justice Samuel Alito from the Third Circuit in 2006, the Roberts Court became the first in the nation’s history made up completely of justices who came straight from federal appeals courts.

The Supreme Court represents the top level of the professionalized judiciary. Testifying before the Senate in 2007, Justice Stephen Breyer noted that the percentage of federal district court judges who previously served on the state court or magistrate benches increased from 20 percent in the early 1990s to about 50 percent just 15 years later. So far, Obama has adhered to this new norm –20 of his 38 district court nominees were previously lower court judges, plus 14 of his 18 circuit court nominees were sitting judges. Breyer explained that there’s something lost with this professionalized path:

The federal bench should reflect diversity not simply in terms of race or gender, but in respect to professional background as well. A federal district court is a community institution. The federal judiciary will best serve that community when its members come from all parts of the profession, large firms, small firms, firms of different kinds of practice, all varieties of government practice, other courts, and academia.

Many other nations, France and Belgium for example, have professionalized their judiciaries. But that is not our tradition. Nor, given the need for federal judges to interpret the Constitution and apply that document to protect the basic rights of 300 million Americans, do I believe it is desirable for our nation to go the way of continental Europe. Would a continental style, highly professionalized judiciary have written Brown v. Board of Education? Could it have survived that decision’s aftermath?

The standardization of professional backgrounds for Supreme Court justices is, in large part, driven by the escalation in the confirmation wars over the past three decades. The elevation of experience as the sine qua non of qualifications reached it’s apex with the nomination of Justice Sonia Sotomayor, who brought more federal judicial experience to the Court than any justice in a century. After a 35-year pattern of justices first being lower court judges, the White House would certainly face a challenge crafting a politically legible argument for somebody like Elena Kagan. It’s true that she’s served as solicitor general –  a position known in legal circles as the “10th justice” – but her resume still lacks what’s come to be seen as a necessary element to qualify for the Court.

Although a dearth of professional diversity on the federal bench might be a real and serious problem, fostering biases among judges and narrowing the legal interpretation of our rights, it is a real sign of the times that Kagan’s biggest obstacle to the Supreme Court would be her alternative professional background and not her alternative sexual orientation. That is progress.

UPDATE: See my post following the White House’s statement that Kagan is straight.

(Photo Credit: Flickr user dsearls used under a Creative Commons license)


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  1. collapse expand

    I don’t want to say outright that all Supreme Court Justices must be judges themselves to head to the highest bench in the land.

    But I think the kind of attorney you’ve been takes on a lot of relevance. Part of what troubled me about Harriet Miers was not simply that she hadn’t been a judge – it was that she had been a White House Counsel. That is, it was her job to craft legal justifications for actions that might push the envelope on what the executive branch could do.

    Similarly, the Solicitor General is kind of a political role. She represents a particular executive branch’s interests before the Supreme Court. Her career has had more to do with making a case that something is legal, or illegal, and less to do with applying existing statutes to legal cases.

    In a sense, I think I’d be most comfortable with a career federal or state prosecutor becoming a Justice. True, their job has political ramifications in many ways, but prosecutorial independence is second only to judicial independence in the intersection of our political and legal systems. I’d have more confidence that someone coming from that background would have their legal opinions less shaped by political concerns.

    Of course, Kagan should’ve been a judge. But that’s another discussion entirely.

    • collapse expand

      I agree that the content of a lawyer’s practice should be taken into consideration. Kagan’s career goes beyond her year-plus as solicitor general, of course. She was dean at Harvard Law and a lawyer in Clinton’s White House before Big Bill tapped her for a judgeship (which, as you alluded to, ran aground). That would all need to be examined if she were nominated.

      Although Obama has drawn from the professionalized judiciary for the vast majority of his nominations, he has at least made a nod towards career diversity when going outside the bench. For instance, he tapped a federal public defender, law professors, labor lawyers, a plaintiffs lawyer, ect. A diversity of professional experience gives a diversity of perspectives to the federal judiciary. You can make a case that former career prosecutors possess more independence on matters of executive power than former White House lawyers, but I’d wager they’d tend to rule a certain way on, say, matters that involve the rights of the accused. That’s why a mix is a good idea.

      In response to another comment. See in context »
  2. collapse expand

    Mr. Iafolla,

    When you listed Justices who had not been judges before being nominated to the SCOTUS, I was surprised that you did not name two of the most famous and influential, Thurgood Marshall and John Marshall (no relation). John Marshall had not only not been a judge before becoming the third Chief Justice, but did not even go to law school. Clearly, it is quite possible for a justice on SCOTUS to be not only effective but important while never having been a judge.

    What has happened is that since the Reagan years, congress has become so partisan that what had been a pretty mundane matter of “advice and consent” for confirmation of justices has been hyper-politicized. Nominees now face a fierce grilling where every possible detail of their lives is torn apart. What ever nominee has done, or attempted to do, is avoid answering any questions in any detail and rest their case upon their “expertise”.

    Good or bad, this is the only way through the US Senate to SCOTUS.

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    About Me

    During my career in journalism, I've had the chance to write about all three branches of that hulking leviathan known as the federal government, starting with the judiciary as the L.A. federal court reporter for the Los Angeles Daily Journal and San Francisco Daily Journal. Since moving to Washington in 2008, I've reported on the Supreme Court, Congress, and the executive branch. I'm also interested in media studies, food, and the terrifying lows, dizzying highs, and creamy middles of the Boston sports scene.

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