Why Elena Kagan Should Not be a Supreme Court Justice

Why Elena Kagan Should Not be a Supreme Court Justice

When President George W. Bush nominated White House Counsel Harriet Miers to be Supreme Court Justice in 2005, liberals decried the choice primarily because Miers had no experience serving on a judicial bench of any kind.

Many conservatives saw the point in this criticism and joined in their calls to withdraw Miers’ name from consideration. In the end, Miers herself saw the writing on the wall and withdrew her own name.

Now, more than five years later, many of those same liberals are saying that the nomination of Solicitor General Elena Kagan is a sound one, despite the fact that she has no experience as a judge. The appointment of judges to serve on the Supreme Court is a relatively new phenomenon, they say. The last Supreme Court Justice to not have had any prior experience on the bench was none other than William Rehnquist¹, and conservatives certainly had no problem with his decisions, they say. What does it matter that she has no experience as a judge?

It matters plenty.

For starters, Rehnquist was appointed to the Supreme Court in 1972, and few people will argue that we live in very different times today. There is a reason nominees to the Supreme Court have had judicial experience since then. In many ways, the world is much more complex, and so are the cases coming before the Supreme Court.

But that’s just for starters.

Perhaps the most important reason recent nominees have been candidates with experience as judges is because they had a body of work to which people could point. There was a way for the public to understand the kind of judges they were getting. With someone like Kagan, we are denied that. We have no way to know what kind of judicial temperament she has, because she has never been asked to act judiciously.

Perhaps that’s why Kagan has recently called for Supreme Court nominees to be more forthcoming with the Senate Judiciary Committee. Whether she’ll abide by her own calls for openness remains to be seen, however.

According to a story² in the Washington Post, even President Barack Obama has historically been reticent to give his consent to a non-judicial candidate being nominated as Supreme Court Justice. Here’s what he had to say after President Bush nominated Miers:

“Harriet Miers has had a distinguished career as a lawyer, but since her experience does not include serving as a judge, we have yet to know her views on many of the critical constitutional issues facing our country today. In the coming weeks, we’ll need as much information and forthright testimony from Ms. Miers as possible so that the U.S. Senate can make an educated and informed decision on her nomination to the Supreme Court.”

Good point, Barack. Perhaps you should reconsider your choice.