President Obama has nominated Solicitor General Elena Kagan to the Supreme Court. Kagan would the third female on the court and the court's youngest justice. Kagan has also never served as a judge in any court, making her, if seated the first such High Court jurist in almost 40 years.
The wisdom of choosing a nominee to the Supreme Court who has never served as a judge or even a litigator for any length of time is questionable. One cannot imagine someone being appointed the CEO of a major corporation with no business experience, or being appointed Chief of Surgery in a trauma hospital without ever serving as a trauma surgeon, but Elena Kagan is being touted as qualified almost solely on her record as an intellectual and academician.
While other Supreme Court justices have been seated without prior judicial experience, one could argue that precedence of this type is not necessarily indicative of the wisdom of that precedence. A repeated mistake is still a mistake. It should also be remembered that the last nominee to have no judicial track record, Harriet Miers, was pilloried for precisely this reason despite having a much longer record of practical law experience.
There will be battle lines drawn for the confirmation process, and Kagan's lack of judicial record will be one of them. On the advantageous side, a lack of judicial decisions will make it hard for her opponents to attack her possible judicial philosophy. From a negative standpoint, the very lack of a record may be called a problem, in and of itself an indication that Kagan does not belong on the Court.
Another point of contention will be what the Solicitor General thinks the purpose of the Supreme Court actually is. If I were able to ask three questions of Kagan, that would be my first. Liberal court nominees have a record of using the court to write new rights into the Constitution, and there is little doubt this is exactly what President Obama intended when he suggested his nominees to the Court should have "empathy." Conservatives generally believe that the Supreme Court's purpose is to interpret whether a law fits the Constitution, and not as Thurgood Marshall said, to "do what you think is right and let the law catch up. It is not likely coincidental that Ms. Kagan clerked for Marshall and idolized him.
Another interesting question to ask would be why Ms. Kagan wants to be a jurist at all. She has never pursued a career either as a lawyer or judge, preferring to remain in academia. Why then would she want to "start" such a career as one of the highest judges in the land? Even as a professor and Dean of Harvard Law, Ms. Kagan published few papers and opinions. Now she wants to have one of the most powerful and influential opinions in the country and the power to make that opinion binding on every American. I think America has the right to know why.
One more question would likely be why she feels qualified to take a seat that many could argue is designed for someone with not only a vast theoretical knowledge of the law and Constitution, which Ms. Kagan certainly possesses, but also has experience arguing and applying the law and Constitution in the real world. A Supreme Court decision becomes the law of the land, enhancing, diminishing, or even creating portions of the Constitution itself. Do we really want someone who has never handed down a single court decision getting "on-the-job" training with that much power?
It bears going back to the surgeon analogy. Do you want your neurosurgeon to be a surgeon with hundreds of surgeries under his belt or a research physician who has extensive and arguably superior academic knowledge but has never once operated on an actual patient?
As a conservative, in all honesty I would likely oppose almost any nominee to the Court put forward by President Obama on philosophical grounds alone. They are almost certain to have an activist view of the Supreme Court, just as Kagan does.
However, arguing strictly on judicial experience, any reasonable judge with some years of decisions and academic qualifications under his or her belt would be qualified to the post and consequently should be voted on based on that.
Elena Kagan lacks the proper credentials and should be opposed for that reason, as a minimum.
Ameena Schelling, Reserved passion: Kagan '81, The Daily Princetonian
Ben Feller, Obama Nominates Elena Kagan for the Supreme Court, Yahoo! News
Josh Gerstein and Carol E. Lee, President Obama to Senate: Act Fast, POLITICO.com
George F. Will, Identity Justice: Obama's Conventional Choice, washingtonpost.com
Kagan a Courtroom Novice No Problem for High Court, Supporters Say, FOXnews.com
Greg Sargent, Michael Steele attacks Kagan's praise of Thurgood Marshall, The Plum Line
Paul Campos, Blank Slate: There's a lot we don't know about Elena Kagan-because she's never told us., The New Republic