Tuesday, May 11, 2010

A New Supreme Court Justice

President Obama's nomination of Elena Kagan to the United States Supreme Court has raised the complaint in some quarters that she is not qualified to sit on the Court because she has no judicial experience. The complaint is without merit.

A quick look back at the 20th century shows that the Supreme Court was the first judicial job for the most influential Justices: Louis Brandeis, Felix Frankfurther, William O. Douglas, Hugo Black, Robert Jackson, Earl Warren, and William Rehnquist immediately come to mind. While Benjamin Cardozo arrived at the Supreme Court after many years on the New York Court of Appeals, he began his tenure on the Court of Appeals after only a very brief stint on a Manhattan trial court.

The United States Supreme Court is a policy making body, and it does not appear that prior judicial experience makes one better equipped to set policy than being a former practicing lawyer (Brandeis), a former governor (Warren), a former law professor and chair of the Securities and Exchange Commission (Douglas), a former United States Senator (Black), or a former member of the Department of Justice (Rehnquist). The Supreme Court's recent decision in Citizen United v. Federal Election Commission which declined to limit corporate contributions to elections was a policy determination by five members of the Court on the reach of the First Amendment. The prior judicial experience of the five-person majority did not lead to the result; it was their policy predilections.

It can be helpful for one or more members of a high court to have had prior courtroom experience as a trial judge or a trial attorney. For example, Justice Sonia Sotomayor's experience as a United States District Court Judge is valuable in bringing to the Court an understanding of how particular procedural rulings will play out at the trial level. But I do not think her prior judicial experience necessarily makes her better equipped to address the broad constitutional policy questions with which the Supreme Court deals.

In sum, I am not fazed in the least about the absence of judicial experience in Elena Kagan's resumé.

Finally, much has been made of the fact that with the retirement of Justice Stevens (who attended Northwestern Law School), and the elevation of Kagan to the Court, all the Justices will have graduated from Harvard or Yale law schools. (While Justice Ginsburg did attend Harvard, she actually graduated from Columbia Law School.)

This just tells me that smart, ambitious people have a keen understanding of where political and legal power resides, a notion best captured by the title of the autobiography of westerner Justice Douglas, Go East, Young Man. I would be concerned if graduation from a small circle of schools was producing a single mold of thought, but it is not. The current Harvard and Yale graduates on the Court are on both sides of the ideological divide.

More interesting is that if Elena Kagan is confirmed there will be four New Yorkers on the Court: Chief Justice Roberts (Buffalo), Justice Ginsburg (Brooklyn), Justice Sotomayor (the Bronx), and Kagan (Manhattan). And while Justice Scalia was born in New Jersey, he was raised in Queens from the age of six. Maybe more important than law school is the New York water.

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