As an attorney, Elena Kagan, currently the Solicitor General of the United States, has a distinguished and accomplished career. However she does not have any experience as a jurist, which makes her nomination by President Obama to replace retiring United States Supreme Court Associate Justice John Paul Stevens perplexing.
Typically service as a judge in the Federal appellate level is a de facto qualification for the Supreme Court, though one not outlined in the Constitution. Now Kagan is not the first nominee in recent history to not have any service as a judge at any level. The late Chief Justice William Rehnquist was nominated by Nixon for the Supreme Court while Rehnquist served in the Justice Department, and former Justice Sandra Day O’Connor was nominated by Reagan out of the Arizona legislature.
All currently-serving Supreme Court justices were previously at the Federal appellate level prior to their nomination to the Supreme Court:
- John G. Roberts, Chief Justice — DC Circuit
- Antonin Scalia — DC Circuit
- Sonia Sotomayor — Second Circuit
- Samuel Alito — Third Circuit
- Stephen Breyer — First Circuit
- Ruth Bader Ginsburg — DC Circuit
- Clarence Thomas — DC Circuit
- Anthony Kennedy — Ninth Circuit
- John Paul Stevens — Seventh Circuit
As you can see, the currently sitting justices are majority from the DC Circuit, including the Chief Justice. Recently-retired Associate Justice David Souter served on the DC Circuit as well prior to his nomination for the Supreme Court by George H.W. Bush.
Now it unfortunately appears that she will be confirmed by a "rubber stamp" vote by the Senate unless something really damning about her comes up. I expect Senator Lindsey Graham (R-SC) to restate the observation he gave during Justice Sotomayor’s confirmation hearings (the same hearings in which ‘Miss Jane Roe’, aka Norma McCorvey, was arrested for trying to disrupt the hearings1Kane, Paul. (2009, July 13). "‘Jane Roe’ Arrested at Supreme Court Hearing". Washington Post.):
Unless you have a complete meltdown, you’re gonna get confirmed.2Real Clear Politics Video. (2009, July 13). "Sen. Graham: Barring A Meltdown, Sotomayor Will Be Confirmed".
Kagan was the only candidate to replace Justice Stevens who is not and never was a jurist. That is the one issue that the Senators on both sides of the aisle need to consider, more so than the fact that it’s easier to learn who Jack the Ripper actually was than determine Kagan’s point of view on many key topics. Many have questioned whether Kagan will be Obama’s Harriet Miers.
Part of Kagan’s past includes a very thin record of legal scholarship. As Paul Campos, writing for The Daily Beast observed:
Kagan’s work reminded me of Orwell’s observation that, if book reviewers were honest, 19 of 20 reviews would consist of the sentence, "this book inspires in me no thoughts whatever." The bottom line regarding Kagan’s scholarly career is that there’s no there there. This is a problem not only because we have no evidence regarding what her views might be on almost any important legal question, but also because Kagan’s supposed academic achievements are being touted as the primary justification for putting someone who has never been a judge on the nation’s highest court. Now the fact that Kagan is more or less an academic nonentity would be of merely academic interest if she possessed unrelated but compelling qualifications for ascending to the nation’s highest court.3Campos, Paul. (2010, May 1). "The Next Harriet Miers?" The Daily Beast.
Kagan clearly has no qualifications really for any Federal appellate court, let alone the Supreme Court of the United States. Now while Rehnquist and O’Connor were two very distinguished jurists while on the Supreme Court, and neither previously served on any Court before the Supreme Court, a similar prediction really cannot be made of Kagan.
If the Senate is smart (of which I doubt), they will refuse to confirm Elena Kagan and their advice to the President will be summarized as "find a Circuit Court judge and try again".