By Mike Dorf
I realize that the complaint of some Republicans that Elena Kagan lacks judicial experience is opportunistic. Nonetheless, points made opportunistically or otherwise insincerely can be correct. Thus, it's worth asking whether judicial experience is essential--or even helpful--for a Supreme Court Justice. My answer, unsurprisingly: Not essential; possibly helpful.
To get a handle on the issue--and to avoid confusing the matter with ideological considerations--we might usefully compare and contrast Kagan with the three Democratic appointees currently on the Court: Justices Ginsburg, Breyer, and Sotomayor. All three served for substantial periods as federal appeals court judges before being named to the Court, Ginsburg on the D.C. Circuit, Breyer on the First Circuit, and Sotomayor on the Second Circuit. Before that, Sotomayor was a federal district judge, while the other two were law professors, Ginsburg at Rutgers then Columbia, Breyer at Harvard. Ginsburg specialized in civil procedure, while Breyer was a specialist in administrative law and regulation more generally. Ginsburg and Sotomayor both had substantial experience as litigators, including, in Ginsburg's case, Supreme Court litigation. Breyer did some litigation early in his career, including as an assistant special prosecutor during Watergate. He also worked for Congress and by the time he was appointed to the Supreme Court, Breyer had expertise in criminal law from his role on the Sentencing Commission. Thus, based on prior experience, all three were supremely qualified.
Now let's turn to Kagan. Her time as Associate White House Counsel under Clinton and her year as Solicitor General compare favorably with Breyer's executive branch experience. Kagan's stint as a law professor at the University of Chicago and Harvard was at least as good, and possibly better, training for being a Supreme Court Justice than was the time spent in the academy by Ginsburg and Breyer, simply because Kagan's specialty--constitutional law--is most relevant to what are generally regarded as the most important cases the Supreme Court hears.
What Kagan appears to lack relative to Ginsburg, Breyer, and Sotomayor is the exposure to the breadth of issues of federal law that confront the Supreme Court that long service on a federal appeals court provides. Service as a federal district judge provides the same, but in smaller doses; much of a district court judge's time is spent in scheduling conferences, picking juries, deciding sentences, and presiding over trials, meaning that in a given period of time, a district court judge will be called upon to decide fewer important questions of federal law than will an appeals court judge. And service on a state court will also provide small doses, because state court judges also have their attention taken up by issues of state law.
This leaves us with two questions about nominees like Kagan, who lack substantial judicial experience: 1) Are there other experiences that can clue a nominee in on a broad range of issues of federal law? And 2) Are there other experiences that can provide a nominee with a judicial temperament?
As to 1), the answer is yes. As Harvard Law School Dean, Kagan was deeply involved in evaluating the scholarship of prospective appointees to her faculty, across a wide range of subject areas. Much of that work would not be directly relevant to the work of the Supreme Court, of course, but much of it would be. An otherwise excellent professor of constitutional law might not know much about federal securities regulation, tax, or civil procedure. But a dean who was responsible for hiring in these fields would be broadly familiar with them. Indeed, it's hard to think of many other experiences that would be equally effective in preparing a prospective Justice for the work of the Court. Other highly relevant experiences would include: clerking at the Supreme Court (a box Kagan checked); being SG (check); and perhaps writing about the docket as a whole (a la Linda Greenhouse, say, or a blawger!). Accordingly, if the question is whether Kagan is familiar with the breadth of issues of federal law that come before the Court despite not having served as a federal appeals court judge, the answer is clearly yes.
What about the second point? Part of being a Supreme Court Justice is being a judge. Not every legal expert is suited to such work. One might have a temper. Another might have difficulty making decisions. "Judicial temperament" is a catch-all term that encompasses these and other factors that bear on whether someone is suited to any judgeship, including being a Supreme Court Justice. But it's worth noting that, for the most part, judicial experience will not confer a judicial temperament. It is essentially a personality trait that judicial experience will either reveal or belie. On this score, then, Kagan's lack of judicial experience makes it somewhat difficult to evaluate her judicial temperament, but it does not suggest that she lacks it. On the contrary, just about everything we know about Kagan suggests that she is extremely judicious. Indeed, it is just that judiciousness--her rather remarkable ability to keep her views on hot-button issues to herself--that concerns skeptics on both the right and the left.
Bottom Line: At least in Kagan's case, lack of judicial experience is a non-issue.