An important question to ask of any Supreme Court nominee is whether, and how, his or her career to date has prepared them to serve on the bench.
Most agree that serving as a judge is excellent prior experience to serving as a Supreme Court Justice. The overwhelming majority of Americans say that prior judicial experience is a positive factor for the Court.[i] In fact, asked about the favorability of a number of qualities a nominee might possess, Americans put prior judicial experience at the top of the list.[ii]
Judiciary Committee member Senator Amy Klobuchar recently pointed out that judicial experience is necessary to build a strong judiciary. “[I]f we just put judges on the court that have handled no difficult cases, that haven’t been in the arena, or people who have never been judges before and so they didn’t have those difficult decisions, I don’t think we’d have a strong judiciary.”[iii] Judiciary Committee Chairman Patrick Leahy has agreed that judicial service “certainly” can prove sufficient “competence” to serve on the Supreme Court.[iv]
Considering such widespread consensus that judicial experience is good preparation for the bench, it should come as no surprise that most Supreme Court Justices have had such experience prior to their appointment. In fact, no Supreme Court Justice without prior experience on the bench has been appointed in almost 40 years.[v]
Of the justices who never served on another bench, the vast majority of those at least had extensive experience practicing law. William Rehnquist, the last Supreme Court Justice without prior judicial experience, practiced law in Phoenix for 16 years.[vi] Lewis Powell and Louis Brandeis practiced for 39 years[vii] and 37 years, [viii] respectively. According to a Congressional Research Service analysis, the justices without prior judicial experience practiced law for an average of 21 years before their appointment to the Supreme Court.[ix]
The reason judicial experience, or at least deep familiarity with the courtroom, is essential is that judging is a craft and litigation is a skill. Neither can be learned from a book alone. Indeed, Ms. Kagan herself once wrote: “It is an embarrassment that the President and Senate do not always insist, as a threshold requirement, that a nominee’s previous accomplishments evidence an ability not merely to handle but to master the ‘craft’ aspects of being a judge.”[x] A nominee, in Kagan’s view, must be able to show that he or she “has the training, skills, and aptitude to do the work of a judge at the highest level.”
Prior judicial service certainly is not a prerequisite for service on the Supreme Court, even if it is the most common and best training for the job. For a nominee who has no such training, the question is whether and how his or her particular background, in this case serving as an academic administrator and an advisor to presidents, shows an adequate understanding of the “craft” of judging, as Ms. Kagan put it. Over the next several weeks, the Senate will deliberate on whether Ms. Kagan, in her past professional life and in her answers at her hearing, has the requisite legal experience and appreciation for the role of a judge to serve on the bench and impartially apply the law.
[i] “Poll affirms a vote for judicial know-how,” Washington Post, April 30, 2010, http://www.washingtonpost.com/wp-dyn/content/article/2010/04/29/AR2010042904893.html
[ii] FOX News/Opinion Dynamics Poll, April 20-21, 2010, http://www.pollingreport.com/court.htm
[iii] Judiciary Committee, Executive Business meeting, June 10, 2010, http://www.senate.gov/fplayers/CommPlayer/commFlashPlayer.cfm?fn=judiciary061010&st=xxx
[iv] Press conference, November 2, 2005.
[v] E.g., “Supreme Court Nominee Could be First without Judicial Experience Since 1971,” Dayton Daily News, May 11, 2010, http://www.daytondailynews.com/news/politics/supreme-court-nominee-could-be-1st-justice-without-judicial-experience-since-1971-698448.html
[vi] Justices, Presidents, and Senators, Henry A. Abraham, 5th Ed., Roman & Littlefield Publishers, Inc., 2008, at pp. 251-252 (“his legal credentials were impeccable and impressive” and he “enjoyed[ed] the general practice of law” in Phoenix from 1953 to 1969). See also Federal Judicial Center, http://www.fjc.gov/servlet/nGetInfo?jid=1988&cid=999&ctype=na&instate=na
[vii] Federal Judicial Center, http://www.fjc.gov/servlet/nGetInfo?jid=1927&cid=999&ctype=na&instate=na
[viii] Federal Judicial Center, http://www.fjc.gov/servlet/nGetInfo?jid=241&cid=999&ctype=na&instate=na
[ix] Research provided to author.
[x] “Confirmation Messes, Old and New,” by Elena Kagan, University of Chicago Law Review, Vol. 62, No. 2 (Spring 1995), pp. 919-942, at 932, http://judiciary.senate.gov/nominations/111thCongressExecutiveNominations/upload/KaganSG-Question13A-Part10.pdf
